Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court)Class LLB Part 1 Q.15

“TRESPASS TO PERSON”

1.  INTRIDUCTION

                                  Assault and Battery are kinds of trespass to person. Both of these torts are actionable per se without the proof of the damage. Assault is also a criminal offence punishable under Sec.351 PPC and battery is also punishable under PPC.

2.  DEFINITION OF TRESPASS TO PERSON

Ratan Lal

                                 Wrongs affecting safety and freedom of the person are often termed               as trespass to person.

3.  KINDS OF TRESPASS TO PERSON

Following are the kinds of trespass to person.

i.          Assault

ii.        Battery

iii.      False imprisonment

4.  DEFINITION OF ASSAULT

                         It is unlawful laying of hands by one person upon the body of another person with an intention and apparent ability to do violence to the assaulted person.

                        Winfield:

                            Assault is an act of defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant.

                        ILLUSTRATION:

                             ‘A’ pointing at ‘B’ unloaded pistol would create fear and apprehension in ‘B’ of injury to his body; it would be an assault by ‘A’ against ‘B’.

5.  ESSENTIAL ELEMENT OF ASSAULT

Following are essentials elements of Assault:

I.       SOME PREPARAION OF GESTURE CONSTITUTING A     THREAT OF FORCE

                               There should be some preparation of gesture constituting a threat of force.

II.    A REASONABLE APPREHENSION OF THE USE OF FORCE

                              There should be reasonable apprehension of the infliction of force. There is no assault when fear of the use of forces absent.

III. DEFENDANT’S ABILITY TO CARRY OUT THREAT

                                                            The plaintiff must have reasonable belief that the defendant has ability or capability to carry his threat.

                                               

6.  DEFINITION OF BATTERY

Battery is the intentional use of force to another person without legal justification.

7.  ESSENTIALS ELEMENTS OF BATTERY

I.        USE OF FORCE

                                There should be use of force by one person against the other.

II.   INTENTION

                                The use of force by one person against another must be intentional.

III.WITHOUT LEGAL JUSTIFICATION

        The use of force must be without legal justification.

8.  SIMILARITIES OF ASSAULT AND BATTERY

i.       Both assault and battery are tort as well as crime.

ii.     Both belong to trespass to person.

iii.  Both are actionable per se.

9.  DIFFERENCE BETWEEN ASSAULT AND BATTERY

i.       AS TOUSE OF FORCE

(a)     There is no use of force in assault.

(b)     In battery there must be use of force.

ii.     AS TO APPREHENSION

(c)     There is apprehension of the use of force in assault

(d)    There is no apprehension of the use of force in battery

iii.  AS TO NATURE

(e)     Assault does not include battery.

(f)     Battery includes assault.

10.         DEFENCES IN AN ACTION UNDER ASSAULT AND BATTERY

                       An action for assault and battery can be defendant by any of the following ground.

i.       SELF DEFENCE:- Assault or battery was committed by the defendant in exercise of his right of defence of property or person.

                             

ii.     PARENTAL OR QUASI PARENTAL AUTHORITY

                              If it is done in exercise of parental or quasi parental authority. Provided that the force is not unreasonable.

iii.  EXPULSION OF TRESPASSER

                              Assault or battery was committed against the plaintiff in exercise of extra judicial remedy of expulsion of the plaintiff who was trespassing in the building of the plaintiff.

iv.  PRESERVATION OF PUBLIC PEACE

                              Assault or battery was committed for preservation of  public peace at public place which was disturbed by the plaintiff.

v.     CONSENT

                                Assault or battery was committed with the consent of the plaintiff.

vi.  LEGAL PROCESS

                                 Assault or battery was committed against the plaintiff who resized the service upon him of the process issued by the court of law.

                               

vii. INEVITABLE ACCIDENT

                                  Inevitable accident is also a defence but if an act is done in negligent manner inevitable can not be pleaded.

11.CONCLUSION

                                 To conclude that I can say that, Assault and Battery are tort as well as crime. Assault is a sudden attack and battery is unlawful touching of another person without lawful justification. Both are actionable per se.

Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court)Class LLB Part 1 Q.14

“TRESPASS TO LAND”

1.  INTRODUCTION

                            Trespass is unjustifiable interference with the possession of land. Trespass to land is a form of trespass. It is actionable per se. the interference must be direct and immediate. An entry without the permission of the owner of the land in as trespass. It is also an offence under criminal law.

2.  DEFINITION OF TRESPASS TO LAND

                                                 Trespass is the wrongful and unwarrantable entry, upon the land of another or any direct and immediate act of interference with the possession of land.

3.  MODES OF TRESPASS TO LAND

                    “Trespass to land may be committed in the following ways”.

(a)   By entering upon the land of another

(b)   By remaining there.

(c)    By doing an act which affects the sole possession of other.

4.  CASE LAW

GEORGE VS. PIPER (1829) B & C 591.

   It was held a trespass may be committed by driving a nail into a person wall or by placing any thing against the wall.

1       Tort Relating to immoveable Property

          “sTort relating to immovable property may be of the following types”.

i.          Trespass.

ii.        Trespass abolition

iii.      Dispossession

iv.      Injury to Reversionary rights

v.        Waste

vi.      Injury to right of easement

vii.    Nuisance

5.  CLASSIFICATION OF TORT OF TRESPASS TO LAND

                              Classification of tort of trespass to land is as under.

I.       Aerial Trespass

II.    Continuing Trespass

III. Trespass by joint owner

IV. Trespass by animal

V.    Trespass by Relation

VI. Trespass by ab-initio.

6.  REMEDIES

                        Following remedies are available for person whose land is trespassed.

(a)   Action at law

                       This remedy can be availed to the court. The plaintiff can file a suit in   the   court against the trespasser.

(b)   Ejection

                               The plaintiff can through him off the defendant from his property.

(c)   Use of force

                                The plaintiff may use force in order to expel the defendant.

(d)   Injunction

                                The person whose property has been trespass can obtain an injunction to restraint a continuing trespass.

(e)   Distress damage Pheasant

                     

                           It is a remedy for the performance of the duty or the satisfaction of demand, which consist in the taking of a personal chattel from the possession of the defaulter as a pledge for the performance or satisfaction required.

7.  DEFENCES TO AN ACTION FOR TORT OF TRESPASS TO LAND

Following are some defences available for tort of trespass to land recognized by law of tort.

I.       Licence

      Licence means permission which makes entry lawful. It may be implied or express.

II.   Prescription

                             Prescription is a common right of way over the land of another. Trespass to land can be justified on this ground.

         

III. Authority of law

                              Following are the defences for the defendant who has authority under the law.

(a)     Execution of legal process by the defendant

(b)    Distress

(c)     Distress damage pheasant

IV. Necessity

                     Act of necessity allow entry without consent. Such entry is justified on public necessity such as putting out fire for the public safety.

V.   Self-Defence

                         Self defence is a recognize justification in all system of law. A person may avail this defence.

VI. Abatement of nuisance

                         A person may enter another land to remove nuisance.

VII. Re-entry on land

                         An owner who has been wrongfully dispossessed may re-enter on his land to get back the possession.

VIII. Retaking of goods

                           A person may enter into another land for re-taking his goods.

IX. Easement

      A person who has a right of an easement upon the property of another would not be held liable for trespass to land.

8.  CONCLUSION

                          To conclude it can be said that trespass to land is an interference which is not justifiable by law. Trespass to land is a tort as well as a crime. It may be committed by entry in upon the land of the plaintiff or by remaining there or by doing an act affecting the sole of possession of the plaintiff. Trespass to land protects a person in possession of land against direct inversion of his property.

Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court)Class LLB Part 1 Q.13

STRICT/ABSOLUTE LIABILITY

1.  INTROSUCTION

                                   The responsibility or liability is the ultimate object of the law because the wrong doer must make up or suffer for he has already failed in doing what he ought to have done. It is the ultimatum of the law and has it sourced in the supreme will of the state. It arises from the wrong or the breach of duty.

2.  DEFINITION

I.      ACCORDING TO SALMOND

               “Liability or responsibility is the bound of necessity that exists between the wrong doer and the remedy of the wrong doer”

II.   ACCORDING TO MARK BY

                                “The word liability is used to describe the condition of a person who was under a duty to perform.”

  

3.  KINDS OF LIABILTY

Following are the kinds of liability

i.          Civil liability

ii.        Criminal liability

iii.      Remedial liability

iv.      Vicarious liability

v.        Strict liability

4.  MEANING OF LIABILITY

Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.

5.  STRICT LIABILITY

                       Wrongs which do not require wrongful intent of Negligence are known as the wrong of strict liability. In such cases, a person is punished for committing wrongs even if he has not guilty mind.

a)    REASONS FOR STRICT LIABILITY

                                                      Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.

b)    STRICT LIABILITY IN CIVIL CASES

                                                       Mens Rea is generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his loss and not to punish the defendant, so the rule of strict liability is generally applied in civil cases.

c)     STRICT LIABILITY IN CRIMINAL CASES

                                                         Generally in criminal cases, there is no criminal liability unless mens rea is present and strict liability is not imposed

                                 Exceptions

It is usually said that there were only two exceptions at common law to the rule requiring mens rea or where the rule of strict liability is imposed.

i.       Public Nuisance

                             In public nuisance any employer might be held liable for the act of his employees even thought he himself did not know it had taken place.

ii.     Criminal Liable

             In criminal liable a newspaper proprietor is liable for labels published by his employees.

1       Categories of wrongs of Strict Liability

             The most important wrongs of strict liability falls into three categories.

i.                                                                                            Mistake of law

ii.                                                                                          Mistake of fact

iii.                                                                                        Inevitable accident

6.  APPLICATION OF STRICT LIABILITY

                                Strict liability most often applies either to ultra hazardous activities or in products liability cases.

7.  FIRST CASE LAW ON STICT LIABILITY

Case of Woodrow 1846

                                Defendant was found guilty of having in his possession adulterated tobacco, although he did not know it was adulterated. It was held defendant is liable even if the adulteration was discoverable only by a nice chemical analysis.

               CASE

           Fact

      Fletcher was working in a coal mine under a lease, Rayland who was neighbour of Fletcher desired to erect a reservoir for storing water, for this purpose he employed a contactor whose labour, while excavating the soil discovered some discuss shafts and passage had been filled with loose earth and rubbish. The contactor did not take the trouble to pack these. Shafts and passages with earth so as to bear pressure of water in the reservoir when filled. When construction was made and it was partly filed with the water the vertical shafts gave away and burst downwards. The water flooded the old passage and also the plaintiff mine, so that the mine could not be worked the plaintiff sued for damages.

Held

                                    It was held that of a person brings or accumulates on his land anything which if escapes and causes damage to his neighbour he is responsible, however careful he may have been and whatever precaution he may have taken to prevent damage.

a)                Essentials Conditions for the Application of Rule

                                          The essential conditions for the application of rule of Rayland vs. Fletcher are as under.

Anything likes to do mischief if it escapes.

No natural use of the land.

b)  Exceptions to the Rule in Ryland vs. Fletcher

                                                There are five important exception to the principal laid down in Rayland’s vs. Fletcher.

Act of God or vs. Major.

Wrongful or Malicious act of stranger.

Consent of the plaintiff.

Statutory authority.

Common benefit.

Default of the plaintiff.

Natural user of the land.

Bringing and keeping thing which are not dangerous.

9. CONCLUSION

                                       In strict liability defendant may be held responsible for the harm caused to the plaintiff although he had no intention to do so.