Specific Torts: Negligence, Nuisance, Trespass and Defamation

Negligence has two senses: (i) a mental state (carelessness) and (ii) an independent tort (breach of a legal duty to take care resulting in damage). The classic definition is by Alderson B in Blyth v Birmingham Waterworks Co (1856): negligence is the omission to do something which a reasonable man, guided by considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do. Winfield defines it as the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.

1. Duty of care owed by the defendant to the plaintiff.

2. Breach of that duty (failure to meet the standard of a reasonable person).

3. Consequential damage caused by the breach and not too remote.

The burden of proof is generally on the plaintiff (exception: res ipsa loquitur).

• Donoghue v Stevenson (1932): a snail in a ginger beer bottle; Lord Atkin's neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, meaning persons so closely and directly affected that you ought reasonably to have them in contemplation. This case created the modern tort of negligence and removed the need for privity of contract (Winterbottom v Wright limited).

• Anns v Merton LBC (1978): a two-stage test (proximity/foreseeability; then policy considerations to negative or limit the duty). Later disapproved.

• Caparo Industries v Dickman (1990): the modern three-stage test: (i) damage must be reasonably foreseeable, (ii) there must be proximity between the parties, and (iii) it must be fair, just and reasonable to impose a duty. Auditors owed no duty to potential investors.

• Hedley Byrne v Heller (1964): liability for negligent misstatement causing pure economic loss where there is a special relationship and reliance (disclaimer protected the defendant there).

• Heaven v Pender: an early attempt at a general duty principle (Brett MR).

The standard is that of the reasonable man (Vaughan v Menlove: the hay-rick case, an objective standard regardless of the defendant's actual intellect). Factors: probability of harm, gravity of harm, cost of precautions, and social utility of the activity (Bolton v Stone, a cricket ball hit out of the ground; Paris v Stepney Borough Council, a one-eyed worker owed greater care; Latimer v AEC).

• Professionals: the standard of an ordinary skilled person in that profession. Bolam v Friern Hospital Management Committee (1957): a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical opinion. (Bolitho added that the opinion must withstand logical analysis.)

• Children: judged by a child of the same age (Mullin v Richards). Learners: Nettleship v Weston (objective standard of a competent driver). Specially skilled: the standard of one who professes that skill.

Res ipsa loquitur ("the thing speaks for itself") is a rule of evidence by which negligence is inferred from the very occurrence when: (i) the thing causing damage was under the defendant's control, (ii) the accident would not ordinarily occur without negligence, and (iii) there is no explanation of the cause. It shifts the evidential burden to the defendant. Cases: Byrne v Boadle (1863) (a barrel of flour fell from a warehouse window), Scott v London & St Katherine Docks (sugar bags), Shyam Sundar v State of Rajasthan (1974) (SC applied the doctrine in a truck accident and held that the doctrine can apply in India), Pushpabai Purshottam Udeshi v Ranjit Ginning & Pressing Co (1977), Municipal Corporation of Delhi v Subhagwanti (1966). The doctrine does not apply where the facts themselves disclose the cause or where the defendant lacks control. It is a rule of evidence, not a rule of law that creates liability.

• Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole (1969): a doctor owes the patient a duty to exercise a reasonable degree of skill and knowledge, deciding on treatment and administering it with care.

• Indian Medical Association v V.P. Shantha (1995): medical services (other than free services to all) fall under "service" in the Consumer Protection Act.

• Jacob Mathew v State of Punjab (2005): for criminal negligence of a doctor, gross negligence or recklessness must be shown (a higher threshold than civil negligence); the court approved Bolam and laid down guidelines for prosecution (a prior credible opinion from another competent doctor).

• Spring Meadows Hospital v Harjol Ahluwalia (1998): liability of hospital and doctors; parent as consumer for a child's treatment.

• Samira Kohli v Prabha Manchanda (2008): informed consent.

• Kusum Sharma v Batra Hospital (2010): guidelines on medical negligence; the standard is of an ordinary competent doctor.

• V. Kishan Rao v Nikhil Super Speciality Hospital (2010): expert evidence is not always mandatory; res ipsa loquitur may apply.

The plaintiff must prove that the breach caused the damage: the "but for" test (Barnett v Chelsea & Kensington Hospital: poisoning case; the hospital's negligence did not cause death because the patient would have died anyway). If multiple causes, material contribution (Bonnington Castings v Wardlaw). Novus actus interveniens (new intervening act) may break the chain.

• Hambrook v Stokes (mother's fear for children); Bourhill v Young (a bystander who heard an accident was not owed a duty as she was not foreseeably affected); McLoughlin v O'Brian (1983) (mother saw injured family at hospital shortly afterwards).

• Alcock v Chief Constable of South Yorkshire Police (1992) (Hillsborough): for secondary victims, control mechanisms: a close tie of love and affection, proximity in time and space to the event or its immediate aftermath, and perception through one's own unaided senses (live television broadcasts were not enough).

• Page v Smith (primary victims: no need to prove foreseeable psychiatric injury if some physical injury was foreseeable).

Generally not recoverable in negligence unless a special relationship exists: Spartan Steel v Martin & Co (cable cut; loss of profit from the physical damage recoverable, but not purely economic loss); Murphy v Brentwood DC; Hedley Byrne is the major exception. Omissions: no general duty to rescue; duty arises where a special relationship, control of a danger, or an assumption of responsibility exists (Smith v Littlewoods).

Contributory negligence, volenti, inevitable accident, statutory authority (see Topic 3).

Winfield: nuisance is an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. Two kinds: private nuisance (a tort) and public nuisance (a crime as well, and also a tort where special damage is shown).

1. Unreasonable interference: with the use or enjoyment of land (not liability for mere inconvenience; the test is the standard of ordinary reasonable persons).

2. Damage: either (a) physical injury to property (e.g., damage to trees, buildings) or (b) substantial interference with the comfort and enjoyment of land (smell, noise, vibrations, smoke).

3. Nature of harm: continuous or recurrent, not a one-time event (though a single event may count if arising from a state of affairs on the land).

Factors in reasonableness: locality (St Helen's Smelting Co v Tipping, 1865: for material injury to property, locality is irrelevant; for personal discomfort, locality matters: "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey"), duration and time, intensity, sensitiveness of the plaintiff (Robinson v Kilvert: a person with abnormal sensitivity cannot complain; McKinnon Industries v Walker), malice (Christie v Davey; Hollywood Silver Fox Farm v Emmett), utility of the defendant's conduct (not a defence by itself).

Who can sue: only those with a proprietary interest in the land (owner, tenant, occupier): Hunter v Canary Wharf (1997); mere residents without such an interest cannot. Who can be sued: the creator, the occupier, the landlord who authorised the nuisance, and in some cases the occupier who failed to abate a nuisance created by trespassers or natural causes (Sedleigh-Denfield v O'Callaghan; Leakey v National Trust, measured duty).

An act or omission that materially affects the reasonable comfort and convenience of a class of Her/His Majesty's subjects (earlier IPC Section 268, now BNS Section 270). Examples: obstructing a highway, polluting a river, operating a brothel or a gambling house. A private person can sue only if he suffers special damage (damage different in kind, not just degree, from that suffered by the public: Ricket v Metropolitan Railway; Attorney General v PYA Quarries). In India: Section 91 of the CPC allows a suit for public nuisance by the Advocate General, or by two or more persons with the leave of the court, without special damage; Section 133 CrPC (now BNSS equivalent) allows a Magistrate to order removal of public nuisance.

• Private: affects an individual's land; only a tort; remedy by the person injured; no need for special damage when interference is substantial.

• Public: affects a class of the public; a crime and a tort; the prosecution is by the State; a private plaintiff must show special damage.

• Valid defences: prescription (20 years' uninterrupted enjoyment as an easement: Sturges v Bridgman, the confectioner's noisy machinery against a doctor; the right begins when the nuisance becomes actionable; Indian Easements Act 1882, Section 15), statutory authority (Topic 3), consent/acquiescence, act of a stranger (limited), Act of God.

• Not defences: coming to the nuisance (Sturges v Bridgman), public benefit (Adams v Ursell, a fried-fish shop), reasonable care, that the plaintiff's use was sensitive, others also contribute (Lambton v Mellish).

Remedies: damages, injunction (the primary remedy), abatement (self-help, with notice generally required).

• St Helen's Smelting v Tipping (1865): physical vs comfort nuisance.

• Sturges v Bridgman (1879): locality and prescription.

• Cambridge Water Co v Eastern Counties Leather (1994): foreseeability of damage is a prerequisite for damages in nuisance.

• Coventry v Lawrence (2014): planning permission is not a defence per se.

• Indian cases: Municipal Council, Ratlam v Vardhichand (1980) (Justice Krishna Iyer; a municipality is obliged to provide drains; the public nuisance provisions are an instrument of social justice and a statutory duty can be enforced by a court); Ushaben v Bhagyalaxmi Chitra Mandir (1978, Guj) (the film Jai Santoshi Maa; hurting religious sentiments is not a nuisance in tort).

• Nuisance vs trespass: trespass is a direct and immediate interference with possession (actionable per se); nuisance is indirect interference with enjoyment (actionable on proof of damage). Nuisance vs negligence: nuisance focuses on the result (the unreasonable interference), negligence on the conduct (breach of duty).

• Assault: an act creating in the plaintiff's mind a reasonable apprehension of immediate battery. Words alone are generally insufficient (but may qualify the act). Stephens v Myers (1830: a chairman advancing with a clenched fist; assault although stopped by others); Tuberville v Savage ("if it were not assize-time, I would not take such language from you": no assault, as the words negatived the intention); Read v Coker.

• Battery: the actual application of force (any physical contact without consent). The slightest touch can amount to battery. Cole v Turner (the least touching in anger is a battery); Wilson v Pringle (hostile touching; later criticised); F v West Berkshire and Collins v Wilcock (ordinary social contact is excepted).

• False imprisonment: the total restraint of a person's liberty without lawful justification (partial obstruction is not enough: Bird v Jones). It is not necessary to know of the confinement (Meering v Grahame-White Aviation), but knowledge is relevant for damages. Herd v Weardale Steel (a miner's refusal to be taken to the surface was not false imprisonment because there was no obligation to provide an exit). Indian cases: Rudul Sah v State of Bihar (14 years of unlawful detention after acquittal), Bhim Singh v State of J&K, Sebastian Hongray.

• Malicious prosecution: the essentials, as set out by the Privy Council in Mohammed Amin v Jogendra Kumar Bannerjee (1947): (i) the defendant prosecuted the plaintiff; (ii) the proceedings ended in the plaintiff's favour; (iii) the defendant acted without reasonable and probable cause; (iv) the defendant acted with malice; (v) the plaintiff suffered damage.

• Defences: consent, self-defence, lawful authority, parental/quasi-parental authority, necessity.

Unjustifiable interference with the possession of land. Possession (not ownership) is the basis for the suit. Forms: entering the land, remaining after a licence ends, placing objects on it, trespass ab initio (Six Carpenters' Case: a lawful entry becomes a trespass from the start by a subsequent wrongful act). Airspace and subsoil: the owner's rights extend to such height and depth as are necessary for the ordinary use and enjoyment of the land (Kelsen v Imperial Tobacco: an overhanging advertisement board; Bernstein v Skyviews: aerial photography at a height was not trespass). Leading cases: Entick v Carrington (1765) (the officers' warrantless entry was unlawful; the rule that the State must act within the law), Basely v Clarkson (a mistaken mowing of a neighbour's land was a trespass). Defences: licence, justification by law, necessity, self-help (re-entry), and the plaintiff's lack of possession. Remedies: damages, injunction, ejectment, re-entry, distress damage feasant.

• Trespass to goods: direct interference with chattels in the plaintiff's possession.

• Conversion: a dealing with goods in a manner inconsistent with the owner's right, which deprives him of possession (Fouldes v Willoughby: a ferry operator's removal of horses; a mere moving is not conversion unless exercising dominion; Hollins v Fowler).

• Detinue: the wrongful detention of goods after a demand for return. (In England, detinue was abolished by the Torts (Interference with Goods) Act 1977; in India the action of detinue continues under general law and the Specific Relief Act.)

• Remedies: damages, recovery of the specific chattel (Specific Relief Act, 1963, Sections 7–8), recaption.

Defamation is the publication of a false statement which tends to injure the reputation of a person by exposing him to hatred, contempt or ridicule, or which tends to lower him in the estimation of right-thinking members of society generally, or to make them shun or avoid him (Sim v Stretch). It protects reputation (not feelings). The tort is in Indian law largely governed by English common law principles, while criminal defamation was in IPC Sections 499–500, now BNS Section 356.

• Libel: a defamatory statement in a permanent form (writing, print, pictures, effigy; in some systems broadcasts). Actionable per se, and may also be a crime.

• Slander: in a transient form (spoken words, gestures). Generally actionable only on proof of special damage, except in four exceptions (slander per se): (i) imputation of a criminal offence punishable with imprisonment, (ii) imputation of a loathsome disease, (iii) imputation of unchastity to a woman (Slander of Women Act 1891), and (iv) imputation of unfitness in office, profession, calling or trade.

• Indian position: the distinction is not strictly followed; a majority of Indian decisions treat both libel and slander as actionable without proof of special damage, though textbooks sometimes record the English rule. Exam answer: in India, the distinction is not recognised strictly and slander is also actionable per se (majority view); under English law, the distinction exists.

1. The statement must be defamatory (judged by the right-thinking person test; innuendo: Tolley v Fry: a golfer's picture in an advertisement implying that he was paid).

2. It must refer to the plaintiff (Hulton v Jones: "Artemus Jones"; the test is whether reasonable persons would think that it refers to the plaintiff, so intention is irrelevant; Newstead v London Express; Knupffer v London Express: no reference to an identifiable individual in a large class). A company can sue (South Hetton Coal v North-Eastern News), but a government body cannot.

3. It must be published, i.e., communicated to at least one person other than the plaintiff (Pullman v Hill: dictation to a stenographer; communication to the plaintiff alone is not publication; Mahendra Ram v Harnandan Prasad: a letter in Urdu sent to a person who could not read it; no publication).

4. Malice is not an element in civil defamation (it matters for aggravated damages and defeating defences). The defendant's lack of intention does not excuse (Hulton v Jones).

1. Justification (truth): a complete defence in civil law if the statement is substantially true (burden on the defendant). In criminal law, truth must also be for the public good (BNS exceptions).

2. Fair comment: on a matter of public interest, an honest opinion based on true facts, without malice (Merivale v Carson; Kemsley v Foot; the Indian provision in the exceptions to BNS Section 356).

3. Privilege:

   • Absolute: statements in Parliament, judicial proceedings, State communications, communications between spouses (in some systems), no liability regardless of malice.

   • Qualified: a duty or interest to communicate (Adam v Ward), fair and accurate reports of proceedings, protection of one's own interests; defeated by malice. Reynolds v Times Newspapers (1999) developed a public-interest defence for responsible journalism.

4. Apology and offer of amends: mitigating (in England under Defamation Act 1952/1996; in India, under general law, it mitigates damages).

5. Consent; innocent dissemination (distributors who exercise reasonable care).

• Subramanian Swamy v Union of India (2016): the Supreme Court upheld the constitutional validity of criminal defamation (IPC Sections 499–500) as a reasonable restriction on freedom of speech under Article 19(2) and protecting the right to reputation as part of Article 21. This is a very frequently tested case.

• R. Rajagopal v State of Tamil Nadu (1994): the right to privacy; the press may publish material from public records, but not private details without consent; public officials have limited protection against defamation claims unless they prove that the publication was made with reckless disregard of the truth.

• Under UK law, the Defamation Act 2013 introduced a serious harm threshold (not part of Indian law).

Damages (including aggravated and in rare cases exemplary), injunction (quia timet to prevent publication, granted cautiously), and an apology. Limitation: one year for a suit for libel or slander under the Limitation Act 1963.

Expect: Donoghue, Caparo, Bolam, Jacob Mathew, Alcock; res ipsa loquitur cases; the St Helen's distinction; Hunter v Canary Wharf; prescription period for nuisance; public nuisance procedure (CPC Section 91); Tuberville v Savage; Bird v Jones; ingredients of malicious prosecution; conversion vs detinue; libel vs slander; Hulton v Jones; and Subramanian Swamy.