Law of Torts 3

Defamation

Defamation is a statement calculated to escape a person to hatred, contempt or ridicule or to injure him in his trade, business, profession, calling or office. It is of two types i.e. libel and slander.

Libel is a form of defamation in permanent form such as written documents. It in itself is infringement of plaintiff’s rights and no actual damage is required.

Yousoupoff v. M.G.M. Pictures Ltd.[(1934) 50 TLR 581] – The movie figuratively showed plaintiff’s wife being seduced by someone else. It was decided that in a cinema film, not only the photographic part is considered to be a libel but also the speech which synchronises with it is also a libel.

Innuendo – Explanatory averment in the statement of claim defining the meaning which plaintiff assigns to the complained of or specifying the plaintiff as the person to whom they apply.

Cassidy v. Daily Mirror ([1929] 2 KB 331) – The defendant published a photo in which plaintiff’s husband was posing with a girl and published that the husband will marry this girl. This implied that plaintiff was a kept off and hence suit was found to be maintainable and plaintiff was awarded damages.

Slander is the defamation is an oral or transient form addressed to the ear. Slander may be uttered in the heat of the moment and under sudden provocation. In India, Slander is both a tort and crime but in England slander is civil wrong only. Slander is the defamation in a transient form, whether audible, as in spoken words, or visible, as in the case of gesture. Slander is actionable only if plaintiff is able to show special damages. (Frank Flaman Wholesale Ltd. v. Firman [1982] S.J. No. 279)

The following are defence to defamation.

Truth – In a defamation case, the defendant can only be held liable if the statement involved was false. A true statement does not meet the legal requirements for defamation.

Absolute Privileges – Some defendants are protected from liability in a defamation action based on the defendant’s position or status. Absolute privileges apply to the following proceedings and circumstances:

·         judicial proceedings

·         legislative proceedings

·         some executive statements and publications

·         publications between spouses

·         publications required by law

Conditional/Qualified Privileges – These privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. Conditional privileges apply to the following types of communications:

·         A statement that is made for the protection of the publisher’s interest

·         A statement that is made for the protection of the interests of a third person

·         A statement that is made for the protection of common interest

·         A statement that is made to ensure the well-being of a family member

·         A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official

·         A statement that is made by an inferior state officer who is not entitled to an absolute privilege

Reynolds v Times Newspapers Ltd ([2001] 2 AC 127) – The Plaintiff, an Irish politician sued defendants for an article published in their newspaper. The Plaintiff claimed that the words in the article bore the meaning that he had deliberately lied to mislead his cabinet colleagues. The Defendants pleaded the defence of qualified privilege. The court refused to accept the defendant’s plea and observed that a new subject matter category of qualified privilege whereby the publication of all political information would attract qualified privilege whatever the circumstances, would fail to provide adequate protection for reputation.

Law of torts 2

Negligence 

Negligence is a failure to care for someone like that a reasonably prudent person would exercise in similar circumstances. It is a non intentional tort and has four elements:- 

Duty of Care 

Breach of Duty

Causation

Injury

Duty of Care:  It is the first element of negligence that the plaintiff must prove to establish negligence. Duty of care is nothing but the duty owed by the plaintiff towards the defendant. Leading Case on ‘duty of care’ is Donoghue v. Stevenson ([1932] AC 562). It defined duty of care as the duty to take reasonable care to avoid acts or omissions which one can reasonably foresee and would be likely to injure our neighbour. He defined neighbours as persons who are so closely and directly affected by plaintiff’s act that he/she ought reasonably to have them in contemplation as being so affected when he/she is directing his mind to the acts or omissions which are called in question. 

Caparo Industries plc v Dickman ([1990] UKHL 2) is another leading English tort law case on the test for a duty of care. It prescribes a “three-fold test” to check if duty of care to arise: Harm must be reasonably foreseeable, The parties must be in a relationship of proximity, It must be fair, just and reasonable to impose liability. 

Another case to illustrate the concept is Home Office v Dorset Yacht Co Ltd [1970] AC 1004. In this case the defendants were jail authority supervising offenders. The offenders were serving their time by doing some work. The offenders were left unattended by the prison authorities which lead to seven of them escape. These offenders then stole a boat which collided with a Yacht owned by the plaintiff. It was held that the Home Office owed a duty of care for their omission as they were in a position of control over the 3rd party who caused the damage and it was foreseeable that harm would result from their inaction.

Note: The landowner owes no ‘duty of care to a trespasser but from willful injury. They owe a reasonable ‘duty of care’ towards invitee and licensee. 

Breach of Duty is the failure to maintain the required standard of care. In order to determine whether there has been breach of duty one must check the following: the importance of the object to be attained, the magnitude of the risk, the amount of consideration for which services, etc. are offered Ordinary Prudence Test – Plaintiff must prove that Defendant acted/omitted to do something, which a “reasonable person of ordinary prudence” would, or would not have done (Blyth v Birmingham Waterworks).

Klaus Mittelbachert v. East India Hotels Ltd . (1999 ACJ 287) – The question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high prices from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available. 

Kerala State Electricity Board v. Suresh Kumar (AIR 1986 Ker 72) – A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.

Causation – It is the second element required to establish negligence. Causation is demonstration of the link between the plaintiff’s injury and defendant’s act which caused the injury. In order to establish negligence there must be proximity in time and space between the defendant’s act and injury. The injury must be foreseeable too. Causation actually has two components: Actual cause (also called “but for” cause) Proximate (also known as “legal” cause) A famous English Case Law for ‘But for Cause’ is Robinson v Post Office [(1974) 1 WLR 1176]. In this case the plaintiff fell down staircase as they were slippery and was not cleaned. The plaintiff then visited a doctor who carelessly treated him leading to plaintiff fall sick. This lead to plaintiff suing the defendant arguing but for he had not fallen he wouldn’t have got this disease. The court accepted plaintiff’s reasoning and provided damages. 

In Scott v. Shepherd [96 Eng. Rep. 525 (K.B. 1773)] plaintiff threw a lighted squib in a crowded marketplace. The squid was thrown around by until it hit defendant burning his eye. The Court held that the plaintiff when he threw the lighted squid had the knowledge that it is likely to do some mischief and therefore there was proximity between the plaintiff and the defendant. Defendant was accordingly held liable.

Note: In strict liability cases there is no need to show causation.

Injury is the legal damage suffered by the plaintiff due to defendant’s act or omission. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.

 Damnum sine injuria – Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria 

Gloucester Grammar School Case ((1411), Y. B. 11 Hen. 4, f. 47, pi. 19)- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. 

Injuria sine damno– This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon another’s land is actionable even though it has done the plaintiff not the slightest harm. 

Ashby v. White [(1703) 92 ER 126 ] – In this case, the plaintiff was not allowed to cast his vote despite him being legally allowed to do so. After that, the candidate whom the plaintiff wanted to cast vote for also won but the plaintiff’s right to cast was violated and hence this was accepted as a lawful loss. 

Law of torts 1

Assault 

It is an intentional tort where the defendant act is intended to cause reasonable apprehension of an imminent harmful or offensive contact in plaintiff’s mind. An assault is an attempt or offer, by force or violence to do a corporal curt another as, by pointing a pitchfork at him when standing within reach presenting a gun at him with shooting distance, drawing a sword and waving it in a menacing manner. 

Read v. Coker [(1853) 13 CB 850] – In this case, the plaintiff was a tenant of the defendant. The defendant called thugs who pulled up their sleeves and showed their fist and then asked the plaintiff to leave the defendant’s garage. The court held that the act of pulling up of sleeves and showing of fist constituted assault. 

Innes v. Wylie – In this case, a policeman unlawfully prevented the plaintiff from entering the club premises. It was held that “if the policeman was entirely passive like a door or a wall put to prevent from entering the room,” there was no assault. 

Battery 

It is an intentional tort. Application of force on another without any lawful justification is called a battery. It has three elements:- Reasonable apprehension of threat. Intention to use force. Capacity to cause injury. 

Stanley v. Powell ([1891] 1 QB 86 )- Powell, who was the member of a shooting party, fired at a pheasant but the pellet from his gun glanced off a tree and accidentally wounded Stanley, another member of the party. It was held that Powell was not liable for battery. If the act is willful or negligent, the defendant would be liable.

Letang v. Cooper ([1964] 2 All ER 292) – Plaintiff was having a sunbath in the parking lot when defendant riding on a motorbike crushed his legs. Since there was no intention on part of the defendant the plaintiff’s motion failed. 

False Imprisonment 

The illegal confinement of one individual against his or her will by another individual in such a manner as to violate the confined individual’s right to be free from restraint of movement. In order to establish false imprisonment plaintiff must show the following Willful/Intentional detention by the defendant Performed without consent of the plaintiff without the authority of law.

Bird v Jones [(1845) 7 QB 742] – Plaintiff was crossing a bridge, and is stopped by the defendant. The defendant asked the plaintiff to use another way as there was a boat race happening. The court held that since plaintiff had the option to use another way partial obstruction, unaccompanied by force or threat of force, will not constitute false imprisonment. 

The Law of Torts 0

Law of Torts 

The following are the main topics in the Law of torts: 

Assault

Battery 

False Imprisonment 

Negligence 

Defamation 

Intentional 

Infliction of Emotional Distress 

Malicious Prosecution 

Trespass 

Defenses in Law of Torts – Contributory Negligence – Inevitable Accident – Act of God – Mistake – Necessity – Liability of State – Private Defense – Volenti Non Fit Injuria

 Damages 

Some Other Concepts

 – Vicarious Liability 

– Attractive Nuisance Doctrine

 – Tender Years 

– Res Ipsa Loquitur