202 L a w Guide for Competitive Examinations

court, even though the words were written or spoken maliciously, without Law of Torts 2 0 3
justification or excuse. However, a remark by a witness which is wholly irrelevai""Y
re
n could damage one's reputation. Further, in all cases of joint publication each defendant
the matter of enquiry is not privileged.
is liable for all the ensuing damage (viz for a libel in a newspaper, the editor, the
Qualified privilege— It is different from the defence of absolute privilege in printer and the publisher are liable to be sued either separately or together).
respects. First, in this case it is necessary that the statement must've been " . ' °
Who can sue— The publication of defamation can seldom give a right of action to
without malice. Second, there must be an occasion for making the statement. GennZe,
any one but the person defamed. The fact that a defamatory statement has caused
such a privilege is available either when the statement is made in discharge 0,71 damage to other persons does not entitle them to sue. Thus a brother cannot sue for
or protection of an interest, or the publication is in the form of report of par-Batten:1Y. slander of his sister, nor a father for defaming his daughter, nor the heir and nearest
judicial or other public proceedings. A privileged occasion (in reference to quaii-fili relation of a deceased person for defamatory words spoken of the deceased. The
privilege) is an occasion where the person who makes a communication has an interest Calcutta High Court permits the husband to sue where unchastity is imputed to his
or a duty (legal, social or moral) and the person to whom it is made has a corresponding wife, but the Madras High Court not.
interest or a duty to receive it. This reciprocity is essential [Adam v Ward (1917) At.
309]. The following illustrations will clear the point:
(i) 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 7. CONSPIRACY
honesty." A is protected if he has made this imputation on Z in gond
faith for the protection of his own interest.
When two or more persons without lawful justification, combine for the purpose of
(ii) A former employer has a moral duty to state a servant's character to a
wilfully causing damage to the plaintiff, and actual damage results therefrom, they
person who is going to employ the servant. But i f a former employer,
commit the tort of conspiracy. It may consist in the agreement of two or more to do
without any enquiry, publishes the character of his servant with a motive
an unlawful act or to do a lawful act by unlawful means.
to harm the servant, the defence of qualified privilege cannot be take&
Conspiracy is both a tort and a crime; it is a stautory offence. However, under
(iii) I n the case of publication of defamatory matter in a newspaper, if duty10
criminal law merely an agreement between the parties to do an illegal act or a legal
the public exists (RK Karanjiav KMD. Thackrsey AIR 1970 Born 424) act by illegal means is actionable; it is not necessary that the conspirators must have
(iv) Such communication may be made in cases of confidential relationships acted in pursuance of their agreement. The tort of conspiracy i s not committed by
like those of husband and wife, father and his son and daughter, guardian a mere agreement between the parties, the tort is completed only when actual damage
and ward, master and servant or agent, solicitor and his client, partner results to the plaintiff by some overt act or acts of the defendants. The mere act of
or even close friends. Thus, a father may acquaint his daughter about the conspiracy is not subject of civil action.
character of a man whom she is going to many. A conspiracy to injure differs widely from an invasion of civil rights by a single
The presence of 'malice' destroy the defence of qualified privilege. The plaintiff individual because a number of things not in themselves unlawful if done separately
must prove actual or express 'malice' or 'malice in fact' (i.e. actual wrong state of may with conspiracy become dangerous and alarming.
mind) as distinguished from 'implied malice' which the law presumes from the mere Conspiracy to Injure
publication of defamatory matter. In Horrocks v Lawe (1964) 1 All ER 662, held that
howsoever prejudiced the defendant may have been or howsoever irrational in leaping The tort of conspiracy necessarily involves advertence to and affirmation of the
to conclusions, unfavourable to plaintiff, but if he believed in the truth of what he had object of the combination being infliction of damage or destruction on the plaintiff.
When the object of persons combining is to protect or further their own legitimate
said on privileged occasion that entitled him to succeed in his defence of privilege
interest rather than causing damage to the plaintiff that is a justification for their
Burden of Proof combination and they will not be liable even though their concerted act causes
damage to the plaintiff; however, for that the means adopted by them should not be
The burden of proof is on the plaintiff. Thus, for pleading an innuendo, the plaintiff
unlawful (violence, fraud, etc.) and they do not infringe rights of other people.
must make out the special circumstances which made the words actionable and he
mustset forth in his pleading the defamatory sense, he attributes to them.When the In Sorrel v Smith (1925) AC 700, the plaintiff, a retail newsagent, who was
accustomed to take his newspapers from R withdraw his custom from Rand started
defence to defamation is taken, the burden of proof is on the defendant. In a defence
taking the newspapers from W. The defendants, members of a committee of circulation
of fair comment, the defendant has to show that his comments contain no misstatements
managers of London daily papers, threatened the cutting of the supply of newspaper
of fact. In a defence of privilege (qualified), the defendant has to prove that the
to W if W continued to supply newspapers to the plaintiff. Since the defendants had
occasion is privileged.
acted to promote their business interests they were held not liable.
It is important to note that in a case of libel it is not necessary to prove the But a combination, not in pursuit of trade interests, but in pursuit merely of
actual loss of reputation; it is sufficient to establish that the defamatory statements I
204 L a w Guide for Competitive Examinations
Law of Torts 2 0 5
malicious purpose to injure another would be clearly unlawful, and if an
resulted, an action lies, e.g. a combination without justification or excuse to inin,..413
8. NUISANCE
man in his trade by inducing his customers or servants to break their contracts' a
S
him, or not to deal with him or continue in his employment [Quinn v Leathern 090With
AC 495]. However, malice is not an essential requirement of the tort of con, l )
'"Pmacy The term 'nuisance' has exhaustive and diverse definitions. The word 'nuisance' is
Where the plaintiff appeared in character upon the stage, and thereupon derived from the French word moire, to do hurt, or to annoy. In Durga Prasad v State
ib
defendants, with other persons, hissed and hooted at the plaintiff, so as to compel h;14 (AIR 1962 Raj 92), it was observed that 'nuisance' ordinarily means anything, which
to desist from the performance and thereby caused the plaintiff to lose his engage annoys, hurts or that which is offensive.
it was held that a good cause of action was shown [Gregory v Duke of Brunswic7:
Nuisance as a tort means an unlawful interference with a person's use or
"The Hissing case" (1844) 6 M&G 205].
enjoyment of land, or some right over, or in connection with it (Winfield). Acts
In Huntley v Thornton (1957)1 All ER 234, the plaintiff, a member of a union-' interfering with the comfort, health or safety are the examples of it. Nuisance is the
refused to comply with the union's call for strike. The defendants, the secretary and wrong done to a man by unlawfully disturbing him in the enjoyment of his property,
somemembers of the union, wanted his expulsion from the union but the executive or, in some cases, in the exercise of a common right (Pollock).
council of the union decided not to do that. The defendants acting out of grudge Nuisance may be caused by negligence, but it is no branch of negligence and it
against the plaintiff made efforts to see that the plaintiff remained out of work. The is no defence that all reasonable care to prevent it is taken. Nuisance is generally a
defendants were liable as their acts were not in furtherance of any union interest bee continuing wrong (state of affairs). It must not be momentary though it could be temporary.
were actuated by malice and grudge. A constant noise, smell or vibration is a nuisance and ordinarily an isolated act of
Unlawful Means in Conspiracy escape of noise cannot be considered to be a nuisance e.g., an isolated act of hitting a
cricket ball on to a road. However, in Dollman v Hillman Ltd. (1941) 1 All ER 355,
Where the aim is good but the means employed are unlawful, for example, illegal the defendant was held liable for the isolated act, when the plaintiff slipped on a piece
labour strike for a good cause, the result depends upon facts. Unless the predominant of fat lying outside the defendant's butcher's shop, in nuisance and negligence.
purpose is to injure the plaintiff, there is no liability for the tort of conspiracy although
the means employed by the combination are unlawful (See [English] Trade Disputes
Kinds o f Nuisance
Act, 1905 and the [Indian] Industrial Disputes Act).
Nuisance is of two kinds: Public or common nuisance and private nuisance. Public
In Rohtas Industries Ltd v Rohtas Industries Staff Union (1976)2 SCC 82, it
nuisance is a crime (Sec. 268, IPC) whereas private nuisance is a tort or civil wrong.
was held that if the object of a strike by workmen belonging to a Union is to bring
the employer to terms with the employees or to bully the rival Trade Union inn Public Nuisance
submission, there cannot be an actionable combination in tort although the strike is A public nuisance can be defined as an unreasonable interference with a right common
illegal under the Industrial law. Held that the tort of conspiracy was not made out for to general public. Obstructing a public way by digging a trench, carrying on trades
the object of the combiners was not to harm the management but to benefit themselves, which cause offensive smells or intolerable noises, etc. are examples of public truiwtor,
The tort of conspiracy to injure by unlawful means is not complete without Thus, the acts constituting public nuisance are all of them unlawful acts; those, which
pecuniary loss. Damages for injury to reputation or feelings can only be recovered in constitute private nuisance, are not necessarily or usually unlawful. Public nuisance
action for defamation and not in an action for conspiracy to injure by unlawful means does not create a civil cause of action for any person. In order that an individual may
[Lonrho Plc. v Fayed (1994)1 All ER 188 (CA). have a private right of action in respect of a public nuisance -
(i) He must show special and particular injury to himself beyond that
Tort of Conspiracy in India which is suffered by the rest of public.
How far the English tort of conspiracy can be transplanted in the Indian law is no (ii) Such injury must be direct, and not a mere consequential injury; as,
yet settled. Krishna lyer 1. observed : "Whatever the merits of the norms, violation where one way is obstructed, but another is left open.
of which constituted 'conspiracy' in English law, it is a problem for creative Indian (iii) T h e injury must be shown to be of a substantial character.
jurisprudence to consider, detached from anglophonic inclination, how far a mete
In Dr. Ram Raj Singh v Babulal (AIR 1982 All 285), the defendant erected a
combination of men working for furthering certain objectives can be prohibited as a
brick grinding machine adjoining the premises of the plaintiff, who was a doctor. The
tort, according to the Indian value system." The court, however, in Rohlas Industries
dust generated by the machine entered the plaintiff's chamber and caused physical
Ltd. case proceeded to apply the English law.
inconvenience to him and his patients. It was held that special damage to the plaintiff
had been proved.
In Campbell v Paddington Corp». (1911) 1 K.B. 869, an uninterrupted view of
the funeral procession of King Edward VIII could be had from the window of the