Trespass To Person: Assault & Battery
Trespass To Person: Assault & Battery
Common elements:
1. Intention to act:
Letang v. Cooper: Intention is an essential element of trespass
to person.
Fowler v. Lanning: No CoA for trespass to person if intent is
not established.
Elements of Assault:
2. Attempt or threat to do corporeal harm in the form of
words/actions/gestures (not actual contact):
Allen v. Hannaford: Assault depends on the apprehensions
created in the mind of the P and not the intentions of D.
Every threat is not an assault – not mere words, gestures must
accompany them to constitute a threat.
Imminent threat: actual not potential threat.
Extra-sensitive P: only D knew of his sensitivity and used it to
threaten him.
3. Apparent present ability to do the act.
Elements of Battery:
1. Intention to cause physical contact and not damage.
Transferred intent: Individual who suffers contact need not be
the person whom the D intended to harm.
2. Direct/indirect application of force (by the body or an object).
3. Harmful/offensive physical contact (not damage)
Cole v. Turner:
o Lightest angry touch constitutes battery.
o Forceful, reckless touch in close quarters is battery.
o Gentle touch in close quarters with no intention is not
battery.
Vosburg v. Putney:
o D is liable for all injuries resulting directly from wrongful
act, whether or not they were foreseen.
Additional Info:
Battery includes assault.
Separate offense for assault – rationale: To protect people’s mental
peace – imagine a world where you are disallowed to beat people but
allowed to threaten them.
Vertical dimensions of trespass: he who owns the soil owns to the edge of
the heavens and the depth of the earth.
Conversion:
1. D intends to claim ownership of goods for himself (Intention).
2. D treats goods as if they were his own (Direct interference) – exercises
dominion/control over it to the extent that it seriously interferes with
P’s right to control it (Poggi v. Scott).
Sale
Parting with goods
Keeping
Destruction
Denial of right
DEFENSES TO INTENTIONAL TORTS 11/26/2014
Elements:
1. Knowledge of risk
2. Voluntary agreement to risk:
Express or implied consent
Scope: Consent does not apply when its scope is exceeded
(Mohr v. Williams)
Free/voluntary: Consent should not be distorted by fraud,
duress, concealment, incompetency of P, illegal acts, etc.
SELF DEFENSE
Courvoisier v. Raymond:
1. Reasonable apprehension:
Reasonable belief that the use of physical force is necessary to
prevent attack.
No need to show actual risk of bodily harm.
Reasonability is situation-sensitive.
2. Honest force:
Communication between P and D of alleged threat/force, i.e. P
needs to show the threat was apparent.
Mistake of understanding:
o Subjectively honest but unreasonable mistake: no defense.
o Objectively reasonable and honest mistake is accepted.
3. Reasonable means:
Equivalent force used – excessive force does not excuse.
If there are two ways to deal with the threat, the one with lesser
damage should be chosen.
If avenue for retreat/escape existed, D may still be liable.
DEFENSE OF PROPERTY
1. Proportionate force:
Can’t use excessive/deadly force (Bird v. Holbrook).
Where a person peaceably captures chattel from another, the
latter has no right to retake it by violence (Kirby v. Foster).
If D can avoid confrontation with a single demand, he must first
make that request before escalating conflict.
NECESSITY
Classification:
Public necessity – absolute privilege: Risk to a large number of
people is reduced/eliminated by causing harm to P.
Private necessity – conditional/qualified privilege: Risk to one party
is reduced/eliminated by causing harm to P.
Vincent v. Lake Erie Transportation: Private necessity is not
an absolute privilege. Private necessity excuses D from liability
for trespass, but not for damage.
Elements:
1. Actual or apparent imminent danger to interest of D or others.
2. Reasonable steps taken to protect interest against danger.
3. D was not at fault for creating the threat.
NEGLIGENCE 11/26/2014
Elements:
1. Legal duty – obligation towards P to take reasonable care in
performing an act/omission.
2. Breach of legal duty – when D’s conduct falls below the level of care
required of a reasonable man in D’s position, thereby creating an
unreasonable risk of injury to P. (Reasonable man test)
3. Consequential damage – D’s negligent act should be the cause of P’s
injury.
1. DUTY OF CARE
3. CONSEQUENTIAL DAMAGE
Causation:
Causation is important to establish because we need to see if D knew
or should have known of the potential consequences of his act.
Causation in fact: P must establish that the harm of which he
complains resulted from D’s negligent conduct.
But-For Test: Whether P would have suffered injury but for D’s
negligence?
o Counterfactual question that asks what would have
happened if D had not been negligent.
o But-for test isn’t sufficient, it must coexist with proximate
cause.
Substantial Factor Test: Whether D’s act/omission was a
substantial factor in bringing about P’s injury? How influential
was it to P’s injury?
Causation in law (Novus Actus Interveniens): Question of
intervening events which may severe the chain of causation.
Intervening act may be:
o Act of nature
o P’s own conduct
o Act of third party
Generally, D is not liable for all the ulterior harm as he did not
create a special risk of harm from that kind of contingency.
Intervening causes should not be foreseeable, otherwise the
chain of causation is not broken.
Scott v. Shepherd: If injury arises from the force of the original
act, the chain of causation isn’t broken by intervening acts.
Proximity/Foreseeability of Damage:
Determines the extent to which D can be made liable for his act – D’s
act has to be a proximate cause of P’s injury.
Reasonable Foreseeability Test: If P’s injury was a foreseeable
result of D’s act/omission, the latter is a proximate cause for P’s injury.
Bolton v. Stone: Danger couldn’t be foreseen, no liability.
Overseas Tankship (UK) Ltd. v. Morts and Dock &
Engineering Co. Ltd.: If harm is foreseeable, the un-
foreseeability of neither the extent of harm nor the manner in
which it occurred can be used as a defense.
o When the accident is caused by the intrusion of some new
unforeseen factor, the way in which the damage was
caused becomes relevant.
Egg-Shell Skull Rule: P can claim damages for the entire harm, even
if, by virtue of some special bodily sensitivity, it is greater than what
an ordinary person would have suffered.
PROOF OF NEGLIGENCE
Direct evidence
Circumstantial evidence – res ipsa loquitur (Byrne v. Boadle): The
mere occurrence of the accident is sufficient to imply negligence.
Events causing P’s injury must have the following requirements:
Ordinarily occurs because of negligence by someone in D’s
position.
Instrumentality causing the injury must be within exclusive
control of D.
No voluntary action/contribution by P.
Professional Negligence
If D’s position implies skill, he must use it to exercise a greater
standard of care.
Bolam v. Friern Hospital Management Committee (Bolam Test):
Standard of the ordinary skilled man exercising and professing to
have that skill.
Corpus of knowledge, professional equipment, specialized
intelligence/skills, etc. of an ordinary member of the profession.
DAMAGE
Personal
Property
Psychiatric: not temporary grief, medical evidence is required
Economic
DEFENCES
Contributory Negligence
It would be unfair to impose liability on D when P has negligently
contributed to his own injury. However, it is also unfair to completely
relieve D of liability because he was also, in effect, negligent.
Contributory negligence involves lack of care on the part of P which
contributes to the damage caused by the negligence of D.
Whichever party could have avoided the consequences of the other’s
negligence is liable for the injury.
Elements:
1. Duty of care: P should avoid behaviour that results in injury to
himself or mitigate D’s liability.
2. Breach of duty:
o Standard of care of a reasonable man in similar
circumstances.
o Breach of duty when P does not take due care of his own
safety and thus contributes to his own injury.
3. Consequential damage: causation and proximity.
Exceptions to contributory negligence:
Safety statute: When D’s negligence consists of a breach of a
statute designed to protect P.
Greater degree of blame on D.
Last clear chance: If D had last clear chance to avoid injury to P.
Comparative negligence:
Pure form: Apportionment of damages based on relative fault.
Modified form: If P’s negligence > D’s negligence, D need not
pay damages.
Vidya Devi v. M.P.R.T.C.: Although there was contributory
negligence, it was rejected as a bar to relief and apportionment of
damages was adopted instead.
Volenti non fit injuria (Consent)
Smith v. Charles Baker & Sons: One who has assented to an act
being done towards him cannot, when he suffers from it, complain of it
as a wrong.
Elements:
1. Knowledge of risk (reasonable man test is not sufficient)
2. Voluntary agreement to incur risk:
o Express or implied consent:
Morris v. Murray: Implied consent is consent (P got
onto the plane – implied consent).
South Indian Industrial Ltd., Madras v. Alamelu
Ammal: Putting up a warning sign does not amount
to implied consent.
o Scope: Consent does not apply when its scope is exceeded
(Mohr v. Williams)
o Free/voluntary: Consent should not be distorted by fraud,
duress, concealment, incompetency of P, illegal acts, etc.
Morris v. Murray: Consent must be free from
compulsions. Even though P was drunk, his consent
is considered voluntary.
Smith v. Charles Baker & Sons: Consented to risk
of injury but not to lack of care by employers.
Continuation in service does not imply consent.
VNFI can’t be used in rescue cases (Haynes v. Harwood).
Exclusion of Liability
Liability can be excluded through contract between parties.
This cannot preclude liability for death.
Can’t have unreasonable terms.
Insanity
Breunig v. American Family Insurance: Insane person is negligent
if he/she has prior warning/knowledge of sudden incapacitation.
DEFAMATION 11/26/2014
BACKGROUND INFO
ESSENTIAL ELEMENTS
1. DEFAMATORY STATEMENT
3. PUBLICATION
Knowingly or negligently making known of defamatory statement to a
third person (someone other than P).
Huth v. Huth: If it is not natural and probable that the third party
would hear the information, i.e. if the third party hears it wrongfully,
it’s not considered publication.
Spouses:
Communication to a spouse is not publication.
Communicating about one spouse to another is publication.
Re-publication: Re-publication of a defamatory statement made by
another amounts to defamation, too. Can be oral/written.
It is an open question whether the re-publisher is solely liable or
whether the blame should be shared with the original publisher.
If the re-publisher knows of the falsity of the statement and
deliberately chooses to re-publish it, he is solely responsible.
DEFENSES
1. Justification by truth:
D must show that the imputation was true as a whole and every
material part thereof.
Not necessary to justify every detail, provided that the gist is
true and the unjustified details have no effect on the reader.
If there is gross exaggeration, the defense will fail.
2. Fair and bona fide comment:
Fair: Honest and relevant criticism (be it exaggerated or
prejudiced) based on correct facts.
Abdul Wahab Galadari v. Indian Express Newspaper: Fair
comment on a matter of public interest is no defamation if the D
acted in a bona fide manner with due care and caution.
3. Privilege: D’s relation with the facts is such that he is justified in
saying/writing something that would be defamatory for someone else.
Absolute privilege: Not liable even if it is false, defamatory
and/or malicious.
o Parliamentary proceedings: MPs + publishers
o Judicial proceedings: judges, counsels, witnesses, parties
o State communications
Qualified privilege: Not liable even if it is false and defamatory,
unless express malice (indirect and improper motive) is proved.
o Ways to prove: D thought allegations were false, D was
moved by hatred/dislike, showing out anger/prejudice.
o Examples of qualified privilege:
D has a duty to communicate it to a third party that
has a corresponding interest in receiving it.
Confidential relationships (husband-wife).
Info about crime/misconduct.
Communications between persons in public position.
Fair reports of judicial, parliamentary, quasi-judicial
and other similar proceedings / public meetings.
o Govind Shantaram Walaralkar v. Pandharinath
Shivaram Rege: Can’t take the defense of qualified
privilege if there was malicious intent.
CONSTITUTIONAL DIMENSIONS TO DEFAMATION
STRICT LIABILITY
Background Info:
No fault liability – prima facie liability of D for harm regardless of fault.
Rationale: Foreseeable risk inherent in the very nature of the activity.
Exceptions/Defenses:
1. P’s own Default
2. Act of God: Escape is caused through unforeseeable natural and
proximate cause.
3. Consent of P (express or implied): P has permitted D to accumulate
the hazardous object that escaped.
4. Act of Third Party: Danny Klein v. Pyrodyne Corp.: A third party’s
act does not relieve D from strict liability unless it was unforeseeable.
5. Statutory Authority: Exemption from strict liability is expressly
provided in the statute as long as they take reasonable care.
ABSOLUTE LIABILITY
Rationale:
The judiciary tried to make a strong effort following the Bhopal Gas
Tragedy, 1984 (Union Carbide Company v. Union of India) to enforce
greater amount of protection to the public.
Doctrine of absolute liability was therefore evolved in the Oleum Gas
Leak Case, 1987 to provide a strong legal tool against rogue
corporations that are negligent towards the safety of the public.
Ensures stricter compliance to safety standards when enterprises are
engaged in inherently dangerous or hazardous industries.
VICARIOUS LIABILITY
In certain cases, one can be made liable for acts done by another –
only if there exists a certain kind of relationship connecting the two.
Elements:
1. Relationship between person liable and tortfeasor
2. Wrongful act
3. During the course of employment
Respondeat superior: “Let the superior be liable” – therefore state is
liable for the wrongful acts of its employees.
Councils
Central consumer protection council
o Government’s Minister of consumer affairs + two others
(one must be a woman)
State cpc
o Government’s Minister of consumer affairs + two others
(one must be a woman)
District cpc
o Collector + two others
Redressal Agencies: In case rights are violated, these agencies hear
the cases.
National Consumer Disputes Redressal Commission
State Commission
District Forum
Jurisdiction
There are territorial & pecuniary (monetary) considerations to
establish jurisdiction.
How to establish territorial jurisdiction (either of the following
options can be chosen to decide jurisdiction)
o Cause of action (where the problem arose)
If partly at one place and partly at another – both
places have jurisdiction
Wholly at one place – that place has jurisdiction
o Opposition party location (where the opposing party
resides/is registered)
How to establish pecuniary jurisdiction: Monetary compensation
defines jurisdiction
o Compensation is decided on the value of the goods +
damages claimed (total compensation asked for)
o Jurisdictions for each forum:
District forum – cases worth upto 20 lacs
State commission – cases between 20 lacs and 1
crore
National commission – cases above 1 crore
NOTE: Limitation period is 2 years from when the cause of action
arises. This means that any claim made after 2 years will be rejected if
the court doesn’t deem the reasons given for the delay to be valid. The
consumer cannot sleep over his rights.
Appellant jurisdiction:
Appeal to higher forum must be filed within 30 days of the
decision
If no appeal is made within 30 days, decision is final.
CONSUMER
Exception: Does not include a person who buys goods or avails of services
for resale or commercial purposes.
Commercial purpose excludes persons who are self-employed
and obtain goods/services for exclusively for earning a livelihood.
The good/service must be used by the buyer himself.
TRADER
MANUFACTURER
A person who:
1. Makes or manufactures any goods or parts of goods.
2. Assembles parts of goods made/manufactured by others.
3. Puts his own mark on goods made/manufactured by others.
SERVICES
COMPLAINT
COMPLAINANT
i. Consumer
ii. Beneficiary of goods/services
iii. Voluntary consumer under any law
iv. Central/State government
v. Group of consumers having the same interest
vi. Legal heir/representative of deceased consumer
vii. Insurance company
DEFECT IN GOODS
DEFICIENT SERVICES
Such as:
Delay beyond the period agreed upon in supplying goods/services,
leading to rise in price.
Requiring consumers to buy, hire or avail of goods/services as a
condition precedent to buying, hiring or availing of other
goods/services.
Assault:
Intention to do the act, attempt/threat to use force, apparent present
ability to use force
Battery: Intention to cause physical contact, direct application of physical
force (body or object), harmful/offensive physical contact
FALSE IMPRISONMENT
1. Murray v. Ministry of Defense: Duration + knowledge is immaterial,
not being informed of grounds for arrest is unlawful detention
Total restraint on mobility (liberty), unlawful detention, knowledge is
irrelevant
TRESPASS TO LAND
1. Dougherty v. Stepp: Damage is not required (actionable per se),
unauthorized therefore unlawful entry is trespass
Intention to be present there (not to trespass), direct physical
interference, without lawful justification, with P’s possession of land
TRESPASS TO CHATTELS
1. Poggi v. Scott: Wrongful motive need not be proven, D exercises
dominion/control over chattel to such an extent that it interferes with
P’s right to control it (conversion)
Trespass: Intention to handle chattel or interfere with it physically, direct
physical interference, without lawful justification, with P’s possession of
chattel
Conversion: To use it as one’s own, intention to claim ownership
NEGLIGENCE
1. Caparo Industries v. Dickman: Existence of legal duty has three
elements: (i) reasonability (ii) proximity of relationship (iii) fair, just
and reasonable to impose duty
2. Donoghue v. Stevenson: Proximity is not physical it’s about
relationship between P & D – neighbours closely affected by D’s acts
3. Vaughan v. Menlove: Reasonable man is an objective test, not based
on individual judgment. If D acts contrary to reasonable man, he is in
breach of duty
4. Brown v. Kendall: Standard of care varies with circumstances
5. Fletcher v. City of Aberdeen: Obligation is correlative, persons with
disabilities must take reasonable care, public authorities must keep
disabled persons’ safety in mind
6. Roberts v. Ring: Age and reasonable person
7. United States v. Carroll Towing: D is only liable for unreasonable risk,
risk-benefit formula (P * D > B)
8. Scott v. Shepherd: Intervening acts, when injury arises from the force
of the original act, D bears liability
9. Bolton v. Stone: Unforeseeable risk, remoteness of chance, not liable
10. Overseas Tankship (UK) Ltd. v. Morts and Dock & Engineering Co.
Ltd.: If danger is foreseeable, extent or mechanism of danger is
immaterial and you are liable
11. Byrne v. Boadle: res ipsa loquitur – mere occurrence is sufficient to
imply negligence: (i)
12. Bolam v. Friern Hospital Management Committee: Bolam test for
professional negligence – must use standard of care that an ordinary
member of that profession has (ordinary professional’s skill,
intelligence, knowledge, etc.)
DEFENSES TO NEGLIGENCE
Contributory Negligence:
1. Vidya Devi v. M.P.R.T.C.: Contributory negligence ignored,
apportionment of damages based on comparative negligence
Consent
1. Smith v. Charles Baker & Sons: Consent must be voluntary, consent to
continue in service is not implied consent to incur risk from negligence
2. Morris v. Murray: Consent must be free, even under the influence of
alcohol he could give consent. Consent may be implied since he sat in
the plane
3. South Indian Industrial Ltd., Madras v. Alamelu Ammal: Putting up
warning signs is not sufficient to infer implied consent
4. Haynes v. Harwood: Consent can’t be used as a defense in rescue
cases
Insanity
1. Breunig v. American Family Insurance: Insane person is liable if he got
prior signals/warning of sudden incapacitation
DEFAMATION
1. Petra Ecclestone v. Telegraph Media Group Ltd.
2. Indian Express Newspapers (Bombay) Pvt. Ltd. v. Jagmohan Mundhara
3. Hough v. London Express Newspaper Ltd.
4. Huth v. Huth
Defenses
1. Abdul Wahab Galadari v. Indian Express Newspaper
2. Govind Shantaram Walaralkar v. Pandharinath Shivaram Rege
Other Shit
1. R. Rajagopal v. State of Tamil Nadu
2. New York Times v. Sullivan
3. Nishi Prem v. Javed Akhtar
STRICT LIABILITY
1. Rylands v. Fletcher
2. Danny Klein v. Pyrodyne Corp.
3. Rickards v. Lothian
4. Read v. J Lyons & Co. Ltd.
ABSOLUTE LIABILITY
1. M.C. Mehta v. Union of India (Oleum Gas Leak Case)