Some Common Torts – Definitions & Remedies

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SOME COMMON TORTS

Law recognises many torts and assign specific names to them. These torts have specific ingredients and may have special defences apart from general defences discussed earlier. It must be understood that wherever the recognises a Civil right and protects the same from infringement by people at large, an action under tort may be initiated; although no specific name has yet been assigned to the said wrongful act or tort. Conversely, whenever law prescribes a duty towards persons generally, the breach of the same is redressable by action for tort. This is because there exists a general law of tort apart from law of torts.

In other words, law is capable of creating new torts and such a creation is possible by the hands of Judges themselves, and no Statute need be enacted for the same. This is another distinction between tort and crime, where an act is punishable only when it falls within the four walls of a specific offence. That is, there does not exist any general law of crime prescribing punishment for acts, howsoever wrongful or outrageous they may appear, unless there is an existing statute prescribing the same.

Now, we shall discuss about some common torts.


TRESPASS TO PERSON

Trespass to person is intentional causing of Injury to person or body of individual. Thus its essentials are –

  1. Intentional act

  2. Causing of Injury

  3. To person or body of individual

For example, where a woman is hit and her leg broken by a car driven negligently, the tort of trespass to person is not made out as the injury is not intentional. However, the driver may be liable for negligence (another tort). Most common form of trespass to person are – Assault, Battery and False Imprisonment.

Assault

An assault is an attempt or threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act. Thus its essentials are –

  1. Intentional act

  2. Attempt or threat

  3. Corporeal hurt or bodily injury to another

  4. Apparent present ability to do the act.

Intention as well as the act makes the assault. Thus, a mere tap on the shoulder is no assault. But when A makes a fist and tries to punch B in face, though misses, is liable for assault.

Mere words do not amount to assault. Though they may amount to criminal intimidation (another tort). But words along with gestures may amount to assault. Some common examples of assault are showing of fist with anger, raising a baton with intent to hit, aiming a gun with intent to shoot, unleashing a dog, etc.

Battery

A battery is the intentional and direct application of any physical force to the person of another. In short, Battery is a successful assault. What is necessary is that the wrongful act must involve physical contact, but no bodily harm is necessary. Even slight touching of another in anger is battery. For example, When A throws a water balloon on B, it is assault. If the Balloon hits B, it is battery although the balloon may not have bursted.

Some common examples of battery are slapping, pushing, throwing something, spitting on face, overturning the carriage in which person is seated, upsetting ladder on which one is standing, whipping the horse one is riding upon, causing another to be medically examined against his will, forcible removal from a place one is legally entitled to stay, etc.

Some examples where the act is not battery can be pushing of another in a crowd if it is not

deliberate, accidental touch, etc.



False imprisonment

False imprisonment is a total restraint of the liberty of a person, for however, short a time, without lawful excuse. Its essentials are –

  1. Total restraint of the liberty

  2. Without sufficient lawful justification

  3. Period of detention is immaterial

  4. The restraint may be either Actual, that is, physical or Constructive, that is by mere show of authority.

  5. Person unlawfully detained need not have knowledge that he was under detention.

  6. False imprisonment is actionable without proof of damage.

If a person gets another arrested by police by making a false complaint, he is liable for false imprisonment. Where a person is arrested by police on information by a person, he is not liable unless he himself was instigator, promoter and active inciter of the arrest, which would make him liable. The reason is that the Intention is an essential ingredient of tort of Trespass to person. Unless, the intention can be gathered from the act, trespass is not made out.

It is also to note that if a person is arrested without warrant and is produced before a Magistrate. Now, if the magistrate grants remand, tort of false imprisonment cannot be made out. After remand, the remedy is action for Malicious prosecution (another tort).

DEFAMATION

Man considers his honour and reputation more valuable than even his physical safety. The law on Defamation creates a balance between protection of individual reputation and society’s interest in truth and freedom of speech.

A defamatory statement is a statement calculated to expose a person to hatred, contempt or redicule, or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society. Defamation is of two kinds – Slander and Libel.

A Slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. A libel is a publication of a false and defamatory statement tending to injure reputation of another expressed in some permanent form.

The ingredients of libel are –

  1. False statement

  2. In writing or some permanent concrete form such as movie, caricature, statue, newspaper etc.

  3. Defamatory, that is

    1. expose the plaintiff to hatred, contempt, ridicule, or obloquy, or

    2. tend to injure him in his profession or trade, or

    3. cause him to be shunned or avoided by his neighbours.

  4. Statement must refer to the plaintiff

  5. Publication of such statement, that is, communication of defamatory statement to some third person or persons generally.


Defences to tort of defamation

A number of defences or justifications are available in a case of defamation. They are as follows –

1. Truth of the statement.

Truth of a statement is a complete defence to defamation. But the statement must be true in all its parts and as a whole. The motive behind making such a statement is irrelevant. But where the statement is false, it is immaterial that the person saying it honestly believed it to be true.

2. Fair and bona fide comment.

A fair and bona fide comment on a matter of public interest is no libel. That is, legitimate criticism is no tort. Examples of matters of public interest are Affairs of the State, Political issues, Religious Institutions, Public conduct of ministers or other officials of government, Administration of Justice, Books, Works of Art, Theatre and public entertainment. ligious institutions. But the comment must be a fair one. It must be based on the facts. Take for Example, A says of a book published by Z – “Z’s book is foolish; Z must be a weak man. Z’s book is indecent; Z must be a man of impure mind.” A is within the exception.

But if A says-“I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine.” A is not within this exception, inasmuch as the opinion which he expresses of Z’s character is an opinion not founded on Z’s book.

3. Absolute Privilege

Privilege means that a special advantage or immunity or benefit reserved exclusively to a particular person or group. In reference to defamation, Privilege means that the person stands in such a relation to the facts of the case that he is justified in saying or writing it.

A statement is absolutely privileged when no action lies for it even though it is false and defamatory, and made with express malice. Occasions where this absolute privilege may be exercised are –

  1. Parliamentary proceedings

  2. Judicial proceedings

  3. Military and Naval proceedings

  4. Executive proceedings of the State

4. Qualified Privilege

A statement is said to have a qualified privilege when no action lies for it even though it is false and defamatory, unless the plaintiff proves express malice. The following are cases of qualified privilege –

  1. When the circumstances are such that the defendant is under a duty of making a communication to a third person who has a corresponding interest in receiving it

  2. Where the defendant has an interest to protect and the third person has a duty to protect that interest.

  3. Communication made in cases of confidential relationship such as Husband-wife, Parent-child, Guardian-ward, Master-servant, Advocate-client, etc.

  4. Communication made in self protection or word of caution

  5. Protection of common interest

  6. Communication made to persons in public position

  7. Fair reporting of Parliamentary or Judicial proceedings.


FRAUD OR DECEIT

The making of a representation which a party knows to be untrue, and which is intended, or is calculated, to induce another to act on the faith of it, so that he may incur damage, is Fraud in law. Thus deceit is concerned with fraudulent representation. A representation to be fraudulent must be –

  1. Untrue statement

  2. Defendant knows it to be untrue or is indifferent as to its truth

  3. Intended or calculated to induce other to act

  4. Other person acts and suffers damage.

In short, Deceit consists in “leading a man into damage by wilfully or recklessly causing him to believe and act upon falsehood”.

Mere non-disclosure of a fact is not fraud. But where there is a duty to disclose, non-disclosure of the same may amount to fraud. The tort of fraud involves a statement of fact and not merely of opinion. There must be active inducement. The representation must be made with knowledge of its falsehood or without belief in its truth. It is also necessary to prove that the plaintiff suffered damage by acting upon untruth. If the defendant honestly believes in the truth of the statement, there cannot be fraud even when the grounds to believe so are insufficient.


MALICIOUS PROSECUTION

Malicious prosecution consists in instituting unsuccessful criminal proceedings maliciously and without reasonable or probable cause, which causes actual damage to the party prosecuted, as a natural consequence of the prosecution complained of. The law on Malicious Prosecution creates a balance between freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. The tort is limited to unsuccessful criminal proceedings, and does not apply to malicious civil proceedings.

The essentials of malicious prosecution are –

  1. The Plaintiff was prosecuted.

  2. He was prosecuted by the defendant.

  3. Proceedings terminated in the favour of the plaintiff.

  4. Prosecution was instituted against him without any reasonable or probable cause.

  5. Prosecution was instituted with malicious intention, that is, with wrongful in fact.

  6. Plaintiff suffered damage to his reputation, or safety of person, or security of his property.

1. Prosecution

Prosecution, here, does not mean prosecution in legal sense, that is, trial. But the proceedings must reach such a stage at which damage results to the plaintiff. It is enough that a charge is made before a Magistrate with a view to induce him to entertain it.


2. By the Defendant

The defendant must have set the Judicial Process in motion and should have been actively instrumental in bringing about the criminal proceedings. If the complainant mere gives information to the police which he believes to be true and does nothing more, he is not liable for malicious prosecution.

Say, for example, there is a theft at A’s shop. A gives information to the police of theft and lays suspicion upon B. But does not take active part in the proceedings. A cannot be called the prosecutor.

3. Termination in Plaintiff’s favour

It is not necessary that the plaintiff was acquitted but the proceedings must terminate in his favour. He may have been discharged, complaint dismissed or the proceedings quashed altogether. But they must not be pending.

4. Without reasonable or probable cause.

To understand what is without any reasonable or probable cause, one needs to understand what is reasonable or probable cause. For reasonable or probable cause, there must be –

  1. Honest belief in guilt of accused

  2. The belief must be based on honest conviction of existence of circumstances

  3. There must be grounds for a fairly cautious man to believe so

  4. Circumstances so believed and relied upon must be reasonable for belief in the guilt of accused.

That is to say, if a person takes care to have adequate information of facts, honestly believes in the truth of his allegation, and facts are such that a prima facie case is made out, it would certainly be inferred that his conduct is reasonable.

If the charge is false, it is upon the defendant to show that he had reasonable and sufficient cause for making the accusation.

5. Malice

Malice means spite or ill-will towards a person or improper motive. It can also be any improper purpose which motivates the prosecutor, such as malign before the public. It is a wish to injure the party rather than to vindicate the law.

Malice may be inferred from absence of honest belief of guilt and want of reasonable and probable cause for prosecution.

6. Damage

“Damage” is not confined to monetary loss. Damage may be to –

  1. Person’s reputation

  2. Person’s life, limb or liberty

  3. Person’s property, for example, expense incurred in defence.

TRESPASS TO LAND

Dictionary meaning of trespass is to enter unlawfully on someone’s property. Trespass is wrongful interference with land which is in the possession of the plaintiff. To constitute a wrong of trespass neither force, nor unlawful intention, nor actual damage, nor breaking of an enclosure is necessary. Every invasion of private property, be it ever so minute, is a Trespass

Trespass may be committed in any of the following three forms –

  1. By entering upon the land of the plaintiff or

  2. By remaining on such land, or

  3. By doing any other act affecting sole possession of the plaintiff. Such as –

  • Placing any object on it or

  • Throwing any object on it or

  • Constructing a projection in air space over the land of another, or

  • Doing anything on it without lawful justification.

Trespass is a wrong against possession, and in certain cases even the owner may be held liable for the damage to the person in possession of the immovable property.


Remedies to Trespass

The law provides for certain remedies to a person whose property has been subject matter of the wrong of trespass. He may –

  1. Bring an action for trespass against the wrong-doer

  2. Forcibly defend his possession against the trespasser

  3. Forcibly eject him

Defences to Tort of Trespass

The law recognises certain acts as exception to trespass. That is, when an entry is made on property of another under certain circumstances, they do not amount to tort of trespass. They are as follows –

1. Licence

The person in possession may expressly or impliedly give permission to do certain acts which would otherwise be illegal. The said licence may be implied as in case of permission to enter a Public shop.

2. Authority of Law

3. Act of necessity

4. Self-defence

5. Re-entry on land

6. Re-taking of goods and chattels

7. Abating a nuisance


NUISANCE

Nuisance means anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amount to trespass.

According to Winfield, Nuisance is an unlawful interference with one’s use or enjoyment of land or of some right over or in connection with it. Examples of nuisance are disturbing noise, bad smelling fumes, polluting water, overhanging trees, vibrations, sparks, etc.

Nuisance basically is an interference with the comfort of occupiers of land but every interference is not actionable nuisance if the conduct of the defendant is not unreasonable. Some minor discomforts which are parts of the social life in crowded cities, have to be endured, and looking to circumstances of time, place and persons they may not be regarded as nuisance by courts. Whether there is in fact nuisance or not has to be judged from the point of view of time, place, and other circumstances.

Nuisance is of two kinds: Public Nuisance and Private Nuisance.

Public Nuisance

Public or common nuisance is an act or omission, which causes any common injury, danger, or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. From the above definition, ingredients of public nuisance are –

  • act or omission

  • causes injury, danger, or annoyance

  • to the public or to the people

Public nuisance is a criminal act. An individual may sue for public nuisance only if he has suffered some damage that is particular, direct and substantial. In case of no special damage, two or more persons with the permission of the court may bring a civil action for tort.

Private Nuisance

Private nuisance is the using or authorising the use of one’s property or of any thing under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort and convenience.

It is important to note that a right to commit private nuisance may be acquired by prescription (long use) as an easement.


Remedies

The law provides for following remedies against private nuisance –

  • Damages or compensation

  • Injunction

  • Extra-judicial remedy of abatement of nuisance by himself.


NEGLIGENCE

The tort of negligence is different from the Mental element, negligence, discussed before. Negligence, as a tort, is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

According to Winfield, Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. From the definition, one can gather following ingredients of the tort of negligence –

  1. A legal duty

  2. Duty to exercise due care

  3. Duty on the party complained of

  4. Duty towards the party complaining

  5. Breach of said duty

  6. Consequential damage

The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law.


One must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Neighbour is not limited to persons dwelling in one’s locality. It is one who is affected by the negligent act. He is one who must be in contemplation when the mind is directed to the negligent act. So, while you are driving a car, all persons in proximity and may be hit by your car are your neighbours for this purpose. And you must exercise care for all of these persons.

Damage caused by negligent act must not be remote but a direct one. The test is one of foreseeablilty and standard of care is that of a reasonable and prudent man. Thus, every act must be performed with care that a reasonable and prudent man would employ in those circumstances and guard against foreseeable dangers or consequences.

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