Personal Rights & Remedies In Law of Torts

This blog is inscribed by Puneet Dhanoa.

Introduction

Personal rights under torts might be classified as:

  1. Personal rights regarding safety and freedom of the person 
  2. Personal rights regarding personal relations within family 
  3. Personal rights regarding reputation

Infringement of the category of type (1) includes assault, battery, false imprisonment etc. 

Infringement of the category of type (2) includes seduction, enticing away of servants etc.

Infringement of the category of type (3) includes slander and libel. 

The very word personal means “of, relating to, or affecting a person.”‘ A tort which is not an injury to property is a personal tort or an infringement to a personal right of the person available under tort. Personal torts have two components, first, they must relate to or affect a person and second, a cause of action must lie in civil court as a result of the conduct of the defendant.[1] Defamation, fraud, malicious prosecution, assault, battery etc. are some types of personal rights infringement under law of torts.

For the infringement or violation of a right, there are remedies available to the person whose right has been violated. For every violation of a right of a person, a remedy is available to that person. Such remedies are grouped into two main classifications- judicial remedies and extra judicial remedies. Judicial remedies are the ones that the courts of law provide to plaintiff. The remedies available if the party which is harmed takes the law in their own hand are called extra-judicial remedies.

Personal rights under the law of torts include the wrongs done to one party by the other. If the wrong is done by one party to a third party, the other party cannot claim anything or file a case since the wrong has not been done to the second party but the third party. The actions of a person to safeguard one’s body and self, involve using their personal rights and in safeguarding oneself if any tort is committed, then it is committed against the personal right. Along with safeguarding the body, a person’s aspects of personality are also safeguarded under personal right such as reputation and honor. 

In the case of Duffies v. Duffies[2], it was said that “Personal rights are not rights of person. Rights of person are physical, and the personal rights are relative and general, and embrace all the rights any person may have and all the wrongs he may suffer.” In law of torts, the personal rights include rights against defamation, fraud, malicious prosecution, assault and battery etc. 

Personal V. Public Rights

Public rights are the rights available to the public at large. Violation of public rights lead to public wrongs. Any act wrongfully done which ultimately causes harm to the public leads to public wrong. Public rights’ violation affects more people than the private right infringement since in private right violation, there are only two parties, i.e. the wrongdoer and the person to whom the wrong is done. But in violation of a public right or in the case of public wrong, there are more number of parties involved and hence more harm is done. 

Tort law does not limit it to addressing the private wrongs but also the public wrongs. Public wrongs affect the public due to various reasons some of them being infringement of values and interests of the public for which the public is concerned. One of the most prominent public wrong is the public nuisance in which the nuisance is done at the public level to a number of people.

Assault And Battery

Section 351 of the IPC, 1860 defines assault. The punishment for assault has been given in Section 352 of the IPC. Assault is an apprehension of use of force which any reasonable man could apprehend. In the case of assault, the apprehension in the mind of the plaintiff is the material fact whereas the intention of the defendant does not matter. 

Battery is the actual use of force on the other person. Thus it means that assault when converted or put into action results in battery. In Cole v. Turner[3], it was held that least touching of another constitutes battery.

Defamation

Defamation is practiced under the perspective of the freedom of speech and expression since every citizen of the country has the freedom to express their views but subject to certain restrictions keeping in view the decency, morality, security of state etc. Defamation is a tort and a punishable offence according to section 499 of the Indian Penal Code. A plaintiff who is injured by a defamatory statement cannot recover unless she herself was defamed. Courts articulate this point by saying that the defamatory statement must be “of and concerning” the plaintiff.”[4] Defamation which is published or in permanent form is called libel and the one through words or gestures is called slander. The intention of the person defaming does not matter in the case of defamation. It is not considered while giving judgments or considering the cases.

False Imprisonment

False imprisonment is the total restraint on a person’s liberty without any lawful justification. It is a tort and crime as well. As a crime, it is called ‘wrongful confinement’ in the Section 340 of the IPC. “False imprisonment may precisely be defined as an imposition of a total restraint upon the liberty of a person for any period, however short, without lawful justification.”[5] In this tort, there is no obligation on the part of plaintiff to prove the intention of the wrongdoer, it is the duty of the defendant to prove justification for such restraint. State can also be held liable for the cases of false imprisonment as was in Rudal Shah v. State of Bihar[6]despite being acquitted, an under trial was held in imprisonment for several years and hence it was held that he was kept in false imprisonment and the State was made liable to pay Rs. 30,000 as compensation to the petitioner. 

Nuisance

The maxim sic utere tuo et alienum non laedas established the principle of nuisance. “Nuisance as defined by Frederick Pollock is a wrong done to a person by unlawfully disturbing him in the enjoyment of his land, or in some cases in the exercise of a common right.”[7] The person has an exclusive right over his or her property and any act of another person which infringes with the enjoyment of such property is an act of nuisance. “There are two categories of nuisance:

Public Nuisance

It is both a tort and a crime. In Attorney General v. P.Y.A. Quarries Ltd.[8]it was held that “a public nuisance is one which is so widespread that it would not be reasonable to expect one person as distinct from the community at large to take proceedings to put a stop to it.”

Private Nuisance

Private nuisance has been defined in Bhawarlal v. Dhanraj[9] as “an unlawful interference in one’s enjoyment of land or some right over or in connection with it, which causes some material damage or adversely affects the health or convenience of a person.” If the plaintiff is sensitive to a particular situation which a normal person might not deem as being nuisance, then it cannot constitute as being nuisance. If the nuisance is occurring on a regular basis or is occasional, then it cannot constitute as nuisance.

Judicial Remedies

The remedies which a person can get through the court of law are termed as Judicial Remedies. The court of law will grant these once a suit is filed in the civil court. Judicial remedies may be pecuniary or non- pecuniary. These Are damages, injunction and specific restitution.

Extra-Judicial Remedies

When the person can himself control the situation and resort to self- help, the person avails extra judicial remedies by not approaching the court. Such remedies which a person is allowed to seek without approaching the court for justice are called extra- judicial remedies.[10] These are expulsion of trespasser, re- entry on land, abatement of nuisance and re- caption of goods. 

Conclusion

For the minor inconveniences caused to the public or person, personal torts come to the picture. For the violation of such rights of a person, tort laws come to the forefront but since the tort law is not codified, it poses a problem. There exists confusion with respect to some concepts which require codification. Some of the laws have both civil and criminal implications like defamation and false imprisonment. People can get confused as to under what provisions the harm done to them falls. Whether the wrong falls under the criminal code or the civil code causes a confusion in the mind of public. Thus, they can resort to wrong measures believing them to be right for them.


[1] Michael W. Shore and Judy Keller Shore, Personal Torts, 56 smu law review (2003)

[2] Duffies v. Duffies, 76 Wis. 374 (1890)

[3] Cole v. Turner 87 ER 907 (1704)

[4] Benjamin Zipursky, Rights, wrongs and recourse in the Law of Torts, fordham law school (1998)

[5] n v paranjape, law of torts 240 (2nd ed. 2012)

[6] Rudal Shah v. State of Bihar AIR 1983 SC 1086

[7] sir frederick pollock, pollock on torts 302 (15th ed. 1951)

[8] Attorney General v. P.Y.A. Quarries Ltd (1957) 2 QB 169 (184)

[9] Bhawarlal v. Dhanraj AIR 1973 Raj. 212 (216)

[10] n v paranjape, law of torts 61 (2nd ed. 2012)

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