LLB Notes: First Year: Law Of Torts: Unit II: Specific Torts-II

Coverage of this Article

VICARIOUS LIABILITY

-In some cases, a person may be held liable for acts committed by others.

Principles of Vicarious Liability

-Respondeat superior- “Let the superior be liable”: The master will be liable for acts done by servant in course of conducting master’s business.

DEFAMATION

-Defamation injures reputation without justification and lawful excuse by exposing a person to hatred, contempt, or ridicule. It is both a civil and a criminal wrong.

Essentials for defamation

-Words must be false and defamatory

False and defamatory

-A statement will be considered defamatory if it exposes the plaintiff to contempt, or ridicule; tends to injure his profession or trade or; causes him to be shunned or avoided by the society. Whether a statement is defamatory or not is measured by how the right-thinking members of the society will take it. Thus, the standard of the “right minded citizen”is employed. The statement is to be read as a whole and the meaning prescribed to words should be what an ordinary man may apply. Further, the statement must be false, no action lies for a true statement.

Must refer to the plaintiff

-In any action of defamation, the plaintiff has to prove that the statement was referring to them. If the words are taken are referring to the plaintiff, the defendant will be liable. If the words refer to a collective class or group of people, none of those people can sue unless they prove that the words were specifically referring to them.

Published

-It is the publication and not the mere speaking of words that completes the tort of defamation. Publication means the defamatory statement is known to a person other than the one defamed. In other words, a communication to a third person must occur. Publication can be negligent as well.

Defences

-Justification or Truth: If a statement is true or turns out to be true, it is not defamatory. The defendant must prove that statement was true.

A) VICARIOUS LIABILITY

In some cases, a person may be held liable for acts committed by others. In the case of vicarious liability, both the persons at whose behest the act is done, as well as the person who does the act, are liable. It is a type of strict liability, where liability arises due to a relation between the principle and the wrongdoer.

Vicarious liability arises in three cases: where act of wrongdoer is ratified by defendant; where defendant and wrongdoer have a special relationship and; where defendant has abetted the wrongful act.

The kinds of special relationship are:

• Principal and Agent: Where principal authorises his agent to do an act, and in the course of carrying out their duties, the agent conducts a wrongful act, the principal will be held liable for the same. This is because the agent is acting on behalf of principal. This can take on forms such as a master and servant relation, or an employer and employee.
• Relevant case- State Bank of India v. Shyama Devi (1978).
• Partners: In a partnership, each partner is liable for the neglect or wrongful acts of the other partner. The partners have joint liability.
• Guardian and Ward: Guardians are not liable for torts committed by the wards in their care. Relevant Case- Hewitt v. Bonvin (1940)- Son is not fathers’ servant or agent, thus father is not liable for wrongful act of son.

For the purpose of vicarious liability, a servant is someone instructed by the principal about how to carry out his work. The master has the power to control the conduct of the servant. Further, the wrongful act of the servant must be conducted in the due course of employment. It should be a part of the business of the master, and may not merely be a coincidental occurrence. The act should align with the purpose of what the servant was employed to do. If the servant engages in an act altogether different from the purpose of his employment, the master will not be liable for the same.

Principles of Vicarious Liability

Respondeat superior- “Let the superior be liable”: The master will be liable for acts done by servant in course of conducting master’s business.

Qui facitaliumfacit per se- “He who does an act through another is deemed in law to do it himself”: This implies the person who has authorized an agent to do an act is answerable when there is a loss or damage.

B) DEFAMATION

Defamation injures reputation without justification and lawful excuse by exposing a person to hatred, contempt, or ridicule. It is both a civil and a criminal wrong.

English law divides defamation into libel and slander.

Libel is a representation made in a permanent visible form (eg. writing, picture, caricature). It is both a criminal and civil wrong.

Slander is a public defamatory statement made in a transient for (spoken word). It is merely a civil wrong.

Essentials for defamation

1. Words must be false and defamatory

2. Words must refer to the plaintiff

3. Words must be published.

False and defamatory

A statement will be considered defamatory if it exposes the plaintiff to contempt, or ridicule; tends to injure his profession or trade or; causes him to be shunned or avoided by the society. Whether a statement is defamatory or not is measured by how the right-thinking members of the society will take it. Thus, the standard of the “right minded citizen”is employed. The statement is to be read as a whole and the meaning prescribed to words should be what an ordinary man may apply. Further, the statement must be false, no action lies for a true statement.

Must refer to the plaintiff

In any action of defamation, the plaintiff has to prove that the statement was referring to them. If the words are taken are referring to the plaintiff, the defendant will be liable. If the words refer to a collective class or group of people, none of those people can sue unless they prove that the words were specifically referring to them.

Published

It is the publication and not the mere speaking of words that completes the tort of defamation. Publication means the defamatory statement is known to a person other than the one defamed. In other words, a communication to a third person must occur. Publication can be negligent as well.

Important case- Nemi Chand v. Khemraj (1973)-The Defendant called a meeting and made wild imputations against the plaintiff. The defendants printed the speech but it was not proved that these were distributed to the public. The Plaintiff contended that even printing constitutes publication. The Court rejected this contention and stated mere printing is not publication and thus not actionable.

Defences

1. Justification or Truth: If a statement is true or turns out to be true, it is not defamatory. The defendant must prove that statement was true.
2. Fair comment: A critical appreciation of existing facts without creating new facts is a valid defence. This is generally applicable to critics, authors, reporters etc. Legitimate criticism is not a tort.
3. Privileged: It may be absolute or qualified. In certain circumstances, one has the right to speak freely about another. Law recognises that in some cases, free speech takes precedence over right to reputation. Absolute privilege is protected in all circumstances, even if made with malice (such as the protection given to a judge in a judicial proceeding), and qualified privileged should be made without malice. It allows free communication in certain situations where the person communicating the statement has a legal, moral or social duty to make a statement, and the recipient has a corresponding interest in receiving it.