Vicarious liability

Vicarious liability is the liability of the master for the torts of his servant or agent. The principle "Qui facit per alium, facit per se" means one who acts through another acts himself or that the act of an agent is the act of the principal.

The liability of the employer arises in the following circumstances:

:- if the employer authorises an illegal act, he can be made liable

:- employer is liable for the acts of an independent contractor in cases of strict liability

:- employer is lisble in cases of nuisance

The employer is liable for torts committed in the course of employment and not private wrongs. An act is deemed to be done in the course of employment, if it is either:

(1) a wrongful act authorised by the master, or

(2) a wrongful or unauthorised mode of doing some act authorised by the master.

It arises in the relations of principal and agent, master and servant and partners in a partnership firm.

Doctrine of common employment

A master was not liable for the negligent harm done by one servant to another fellow servant acting in the course of their common employment.

Essentials:

(a) the wrongdoer and the person injured must be fellow servants, and

(b) at the time of the accident, they must have been engaged in common employment.

It was abolished in India in 1951 by an amendment in Employer's Liability Act, 1954.

Vicarious liability of the State

Article 300 of the Constitution of India lays down the tortious liability of the State for the torts commited by its employees. Article 300(1) states that: The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

Under the provisions of this Article, the State has been held liable in cases of accidents(Rooplal v. Union of India,Union of India v. Sugrabai,Baxi Amrik Singh v. Union of India, etc), illegal arrests(Bhim Singh v. State of Jammu and Kashmir), custodial violence and deaths(Peoples Union for Democratic Rights v. Police Commissioner, Delhi PoliceHeadquarters, Saheli v Commissioner of Police, Nilabati Behera v State of Orissa).

Defamation

Defamation is an act whereby injury is caused to the reputation of a person. It is both a tort and a crime and hence recourse can be taken both under the civil and the criminal laws.

Defamation under the law of crimes

Section 499 of the Indian Penal Code, 1860, states that: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the fellings of his family or other near relatives.

Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.- An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.- No imputation is said to harm a person' s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful. Illustrations

(a)  A says-" Z is an honest man; he never stole B' s watch", intending to cause it to be believed that Z did steal B' s watch. This is defamation, unless it fall within one of the exceptions.

(b)  A is asked who stole B' s watch. A points to Z, intending to cause it to be believed that Z stole B' s watch. This is defamation, unless it fall within one of the exceptions.

(c)  A draws a picture of Z running away with B' s watch, intending it to be believed that Z stole B' s watch. This is defamation, unless it fall within one of the exceptions.

First Exception.- Imputation of truth which public good requires to be made or published.- It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception.- Public conduct of public servants.- It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.- Conduct of any person touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. Illustration: It is not defamation in A to express in good faith any opinion whatever resepting Z' s conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested.

Fourth Exception.- Publication of reports of proceedings of courts- It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation.- A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception.- Merits of case decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.

Illustrations

(a)  A says-" I think Z' s evidence on that trial is so contradictory that he must be stupid or dishonest." A is within this exception if he says this in good faith, inasmuch as the opinion which he expresses respects Z' s character as it appears in Z' s conduct as a witness, and no farther.

(b)  But if A says-" I do not believe what Z asserted at that trial because I know him to be a man without veracity"; A is not within this exception, inasmuch as the opinion which expresses of Z' s character, is an opinion not founded on Z' s conduct as a witness.

Sixth Exception.- Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no farther.

Explanation.- A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Illustrations

(a)  A person who publishes a book, submits that book to the judgment of the public.

(b)  A person who makes a speech in public, submits that speech to the judgment of the public.

(c)  An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public.

(d)  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, if he says this in good faith, inasmuch as the opinion which he expresses of Z respects Z' s character only so far as it appears in Z' s book, and no further.

(e)  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.

Seventh Exception.- Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Illustration: A Judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier- are within this exception.

Eighth Exception.- Accusation preferred in good faith to authorised person.- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject- matter of accusation.

Illustration: If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z' s master; if A in good faith complains of the conduct of Z, a child, to Z' s father- A is within this exception.

Ninth Exception.- Imputation made in good faith by person for protection of his or other' s interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

Illustrations

(a)  A, a shopkeeper, says to B, who manages his business-" Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests.

(b)  A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith, and for the public good, A is within the exception.

Tenth Exception.- Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

 

Defamation under the law of tort

Defamation can be slander or libel. Slander is the publication of a defamatory statement in a transient form eg, spoken words or gestures. Libel is representation made in some permanent form, eg, writing, printing, pictures, effigy or statue.

Libel is actionable per se but in case of slander, except in certain cases, proof of special damage is required.

Essentials of demation:

(a) the statement must be defamatory

(b) the said statement must refer to the plaintiff

(c) the statement must be published

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, ie, innuendo, which makes the statement defamatory. When the innuendo is proved, the words which are not defamatory in the ordinary sense may become defamatory.

When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the person making the statement believed it to be innocent. Publication means making the defamatory matter is made known to some person other than the person defamed, and unless that is done, no civil action for defamation lies.

In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him.

The liability of the person who repeats a defamatory matter arises in the same way as that of the originator, because every repetition is a fresh publication, giving rise to a fresh cause of action.

Defences:

(a) justification or truth

(b) fair comment

(c) privilege, which maybe either absolute or qualified.

Nuisance

Nuisance is an act that causes injury, danger or annoyance to people. It is divided into public nuisance and private nuisance. It is both a tort as well as a crime. The Indian Penal Code, 1860, makes public nuisance a crime. Section 268 of the Code defines public nuisance as: A person is guilty of a public nuisance who does any act or is guilty of an illegal 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. A common nuisance is not excused on the ground that it causes some convenience or advantage.

Under the law of tort, both public and private nuisance is punishable. Nuisance, as a tort, means an unlawful interference with a person's use or enjoyment of land, or some right over it, or in connection with it.

Public nuisance is interference with the right of public in general and is punishable as an offence.

Essentials of private nuisance:

:- unreasonable intereference

:- interference is with the use or enjoyment of land

:- damage

An act which is otherwise reasonable does not become unreasonable and actionable when the damage, even though substantial, is caused solely due to the sensitiveness of the plaintiff or the use to which he puts his property.

Effectual defences:

(1) Prescriptive right to commit nuisance

(2) Statutory authority

Ineffective defences:

(1) Nuisance due to acts of others

(2) Public good

(3) Reasonable care

(4) Volenti non fit injuria