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An Introduction to the Law of Torts

AN INTRODUCTION TO THE LAW OF TORTS

Nayab Naseer

Shakespir Edition

Copyright 2017 Nayab Naseer

 

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TABLE OF CONTENTS

What is Tort?

Essential Conditions of Liability in Tort

Tort vs Contract vs Crime

General Defences

Remoteness of Damage

Novus Actus Intervenis

Independent Tortfeasors v Joint Tortfeasors

Vicarious Liability

Doctrine of Common Employment

Strict Liability

Absolute Liability

Capacity

The State in Tort

Abuse of Legal Procedures

Champerty and Maintenance

Discharge of Tort

Liability of Occupiers

Liability of Dangerous Chattels

What is Tort

Tort = latin word tortum (to twist), meaning conduct which is twisted, crooked, or not straight

Wrongful act whereby wrongdoer violates some legal right vested in another person

 

Law imposes duty to respect legal rights, and person who makes a breach of such legal rights commits a wrongful act.

 

Salmond: “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract ort breach of trust or other merely equitable obligation.”

 

Winfield: “It is an infringement of a right of a private individual giving the right of compensation at the suit of the injured party”

 

1. Tort is a civil wrong : aggrieved party initiates legal proceedings for damages

2. it is more than mere breach of trust or contract

3. Wrong should be redress able by action for unliquidated damages (damages not previously determined)

 

When there is both violation of contract and civil wrong, person can file a case on either ground, not both. However, criminal case can run concurrently.

Law or Tort or Law of TortS

Essential Conditions of Liability in Tort

To constitute a tort

1.There should be an act or omission on the part of the defendant. eg. There should be a trespass, negligence etc which is recognized by law. For eg, not helping a starving man cannot be ground for tort, but old age home starving inmates is grounds for negligence

2.Such act or omission should violate the plaintiff’s legal right (cause legal damage). The legal damage may be injuria sine damno or damnum sine injuria.

3.Mens rea or mental element is essential in criminal law. However there is no such essential requirement in torts.

Injuria sine damno (damage without injury)

Violation of legal right without causing any loss or damage to plaintiff – covers torts which are actionable per se, without requiring proof of damage – Eg: trespass to land

 

Ashby v White: Returning officer refused to take plaintiff’s vote. The candidate plaintiff intended to win won, but the defendant was still made liable for violating plaintiff’s right

•Bhim Singh v J&K: Petitioner, an MLA was wrongfully detained by polcie, and deprived of constitutional right to attend assembly session and vote therein. Court awarded him damages

 

Court may hand either nominal or exemplary damage. In Bhim Singh’s case, court awarded exemplary damage of 50,000 Rs

Damnum sine injuria (damage without injury)

Damage not coupled with unauthorized interference to plaintiff’s lawful right. Mere act of damage is not actionable unless there is violation of legal right.

Whether the damage was with malicious intent or not is irrelevant (Mayor or Bradford Corp. V Pickles)

No injury as there is no violation of legal rights involved

Eg: competition takes away business, property damaged by flooding due to neighbours constructing retention wall

 

Case Laws

Gloucester Grammar School case: Schoolmaster set up a rival school. Plaintiff had to reduce fees in face of competition, but no legal recourse to loss of revenue.

Mogul Steamship Co v McGregor Gow: number of steamships cartelised and reduced prices, driving plaintiff out of tea-carrying trade. House of Lords held plaintiff had no case as it was case of damnum sine injuria

Chesmore v Richards: Plaintiff-mill owner collected water from a stream for 60 years. Defendant struck a well on his land, pumping large quantities of water and depriving the plaintiff of his water. Court held defendant not liable. Plaintiff has no case unless they show they are entitled to the flow of water in question.

Ushaben v Bhagyalaxmi Chitra Mandir: Plaintiff sought injunction to restrain defendents from exhibiting film “Jai Santoshi Maa” on grounds it hurt religious sentiments. Court held hurt to religious feelings is not a legal wrong, and no person has legal right to enforce ones religious views on another.

Seetharamayya v Mahalakshmiamma: Four Property owners on river bank dug trench and set up bunds to prevent seepage of water to their property. All the water now flew top plaintiff’s land, causing damages. Court held there was no case and defendants were not liable. Law permits protecting ones property even though such act may cause damage. However law does not allow property owner to discharge flood water already in one’s land to a neighbour’s property

Town Area Committee v Prabhu Dayal: municipality razing down illegal construction does not attract damage, as there is no damage for an illegal act

•Pagada Narasimhan v Commisisoner, Nellore Municipality: Traffic police removed a broken down bus that was causing traffic jams. Court held defendants not liable as they were discharging sovereign functions.

Mental Element (Malice) in Tort

Mens rea or mental element is essential in criminal law. However there is no such essential requirement in torts. However, malice is an important ingredient in tort of deceit, conspiracy, defamation and nuisance. These are exceptions to the general rule. Also, proving malice could aggravate award of damages.

 

Malice in Law: wrongful act done intentionally, without just cause – wrongful intention. There is no excuse for malice in law.

 

Malice in Fact: evil motive. Immediate intention may be different from ulterior motive. Malice in fact is not essential to determine liability in law of torts. A wrongful act does not become lawful even if intention (motive) is good. Likewise, and evil intention does not matter is the act per se is not illegal.

 

Case Laws

•South Wales Miner’s Federation v Glamorgan Coal Co: Plaintiff brought action against miner’s union for inducing workmen to take holidays against contract. Intention was to keep up price of coal, by which wages were regulated. House of Lords held defendant’s liable.

•Bradford Corp v Pickels: Defendant tapped into water source running under his property, to deplete neighbor’s water source and hence reduce value of his land. Intention was evil, but act was legal, and as such case was dismissed. Motives are immaterial.

•Town Area Committee v Prabhu Dayal: Legal act, even if done maliciously, is not a case for tortious liability. UP Town planners demolished portions of Phrabu Daya’s house, which was constructed illegally. As construction was illegal, court refused to give compensation.

Privity of Contract and Tortous Liability

A tort action is independent of contract.

Donoghue v Stevenson: Consumer who discovered worm in bottled drink brought action against manufacturer, even though there was no contract between manufacturer and customer.

Klaus Mittelbarchbert v East India Hotels: Luftansa employee suffered serious head injury due to defective design of hotel swimming pool. Court awarded damages under strict liability even though contract of stay was between hotel and airlines.

Tort v/s Contract v/s Crime

Tort v Quasi-Contract

Both tort and quasi-contract are obligations imposed by law, without parties expressly signing such a contract. Injured party has option to sue either under tort or quasi-contract in some cases

 

General Defences

1. Volunti Non fit injuria

2. Plaintiff the wrongdoer (Ex turpi causa non oritur action)

2. Inevitable Accident

3. Act of God

4. Private Defence

5. Mistake

6. Necessity

7. Act done by Statutory Authority

VOLENTI NON FIT INJURIA

What is Volunti non fit injuria?

 

Volunti non-fit injuria = Things suffered voluntary are not deemed to be an injury.

No liability arises if plaintiff has agreed to suffer some harm voluntarily – if the tort arises from informed and wilfull act of the aggrieved party.

Consent may be implied or inferred – not necessarily expressed

The defendant owes only a duty of care, not a duty of skill. Save when a consensual relationship exists between the plaintiff and defendant, by which the defendant impliedly warrants his skill, a man owes no duty to his neighbor, to exercise any special skill beyond which a reasonable man would acquire, before indulging bin any activity.

 

Examples of Volunti non fit injuria:

Ball hitting spectator’s head in a cricket match

Surgeon cannot be sued for causing damage after an operation

 

Case Laws

Hall v Brooklands Auto Racing Club: Collusion of two racing cars caused one car to throw up, injuring the spectator (plaintiff). Court held defendant (racing club) not liable

Thomas v Quartermaine: Plaintiff-employee’s head got injured as plaintiff felt into a cooling vat contain scalding liquid, when trying to remove a lid from boiling vat. Court of appeal held defendant not liable as danger was visible and plaintiff took course of action voluntarily.

Illot v Wilkes: trespasser who knew of presence of spring gun on the field cannot claim damages for injury

Padmavathi v Dugganaika: Two strangers took lift in a jeep, which had an accident, causing injuries. Since they had entered the jeep voluntarily, they were not awarded damages.

Dan v Hamilton: Lady chose to enter a bus instead of an omnibus even when she knew driver was drunk. She was injured in the ensuing accident. Court did not agree to volunta non fit injuria because level of driver intoxication was low..

 

Conditions:

 

1.Scienti non fit injuria. Mere knowledge of the risk is not enough to claim defence. There had to be consent as well. Bowater v Rowley regis: Both plaintiff and defendant’s foreman knew horse would blot, but plaintiff nevertheless forced to drive it. Horse bolted and plaintiff injured. Court held volunti non fit injuria does not apply.

 

2.Consent to suffer the harm must be express or implied. Eg: postman has right to enter premises without invitation. Others entering may be regarded as trespass. Khimji V. Tanga Mombasa Transport Co. Ltd: Driver reluctant to pass through a flooded road – some passenger persuaded the driver – driver relented and the bus submerged, and passengers drowned – court held those dead knew the risk involved and assumed it voluntarily. As such defence of volenti non fit injuria rightly applied.

 

3.Consent must be free: For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff. Hergaty v Shine: Plaintiff’s lover infected here with VD. She filed a suit for assault, however court disallowed, as consent was free and mere suppression of facts did not vitiate consent.

 

4.Consent must not be under compulsion: generally applies to master-servant relationship. Man cannot be said to undertake a risky job willingly, unless he is in a position to choose freely.

Smith v Baker: Crane transporting stone passed through plaintiffs head. Stone fell and injured plaintiff. House of Lords held volunti not fit injura did not apply, as mere knowledge was not enough.

 

5.Consent not obtained under fraud or misrepresentation: R vs Williams: music teacher performed oral sex on a 16 year old making her believe her voiced would improve. Victim mistook it as a surgical operation, and was awarded damages.

 

6.Act done should be same for which consent is given. Lakshmi Rajan v Malar Hospital: hospital liable for damage for removing uterus mistakenly, when consent was remove breast for lump.

 

Exceptions for Volunti non fit Injuria:

 

The doctrine cannot be applied in rescue cases, as long as the act is natural.

Wagner v International Railway: railway passenger thrown out of a running car due to negligence of the railway company. A fellow passenger, out to search for him, lost his footing and got injured. Since it was a case of rescue, railway company was held liable, even though plaintiff took the risk voluntarily.

Haynes v Harwood: police offer stepped in to rescue a horse that had gone out control, and suffered injuries. Defendant’s plea of volunti not fit injuria rejected as it is a rescue case

Baker v TE Hopkins: Dr Baker entered a poisonous well, despite warnings, to rescue two trapped workmen. He died. Widow awarded compensation as volunti… does not apply for rescue cases

 

Volunti non fit injuria and contributory negligence:

Volunti not fit injuria is a complete defense. Contributory negligence is based on proportion of fault

In contributory negligence, both plaintiff and defendant are negligent. Defendents negligence may rule out volunti non fit injuria.

In volunti non fit injuria, plaintiff is always aware of the danger. In contributory negligence, awareness of danger may not be there

PLAINTIFF THE WRONGDOER

Ex turpi causa non oritur action = No action arises from an immoral cause

In tort, just because plaintiff was doing an immoral or illegal act, it does not absolve the defendant from paying damages for an injury. Claim for damage will not hold only if some unlawful action or conduct is connected with the harm suffered by him. Eg: if overloaded truck enters a bridge despite warning and bridge collapses causing damages, no damage applies. But if a bridge collapses on a stolen vehicle within weight limit, victim can claim compensation.

Bird v Holbrook: Plaintiff, a trespasser, was entitled to claim compensation owing to damage inflicted by spring gun set by defendant.

INEVITABLE ACCIDENT

Unexpected injury which could not have been foreseen or avoided, despite reasonable care from the defendant. It does not mean absolute inevitable, but not avoidable by precautions that a reasonable man can be expected to take.

 

Defence of inevitable accident is available when

1. event is unforeseeable

2. consequences unavoidable in spite of reasonable precautions

 

Case Laws

Shridar Tiwari vs UP State Corp: Collusion with an oncoming vehicle due to tires skidding by applying sudden break to avoid hitting a cyclist is inevitable accident, as long as vehicle was maintained properly

Stanley v Powell: During pheasant shooting, defendant’ shot glanced off an oak tree and injured the plaintiff.

Assam State Coop Federation v Anubha Sinha: damage to landlord’s property due to short circuit of electrical wiring. Plea for damages not allowed as short circuit was an accident.

National Coal Board v Evans: Plaintiff’s predecessors had laid electric cables under county land. The cables were damaged during excavation, but defendants (national coal board) were not held liable.

Padmavathi v Dugganika: Passengers in a jeep got serious injuries as axle of jeep broke. It was held routine maintenance could not have prevented axle from breaking. As such defendant not liable.

•Oriental Insurance v Raj Rani: Truck lost control due to mechanical failure, causing injuries. Truck owners held liable as they could not prove they had taken reasonable precautions to ensure truck is roadworthy.

Vedanchariya v TN Highways Dept: culvert collapsed on bus killing one. Culvert collapsed due to unexpected heavy rains. But highways dept. held liable for failing to strengthen culvert for monsoons, which could be foreseen

ACT OF GOD

Act of God is same as inevitable accident, except loss arises due to natural forces such as rainfall, storm, volcanic eruption etc, without human interference.

Act of God is not an excuse for improper preparation for contingencies.

 

1. The occurrence should be extraordinary

2. not avoidable by any amount of reasonable foresight and care

 

Case Laws:

Ramalingha Nadar v Narayana Reddiar: criminal activity (mob violence) which resulted in defendant’s lorry being ransacked cannot be deemed to be act of God

Nichols v Marsland: water from lakes of defendant’s property overflowed, washing away plaintiff’s bridges. However, since the rainfall was extraordinary and could not be expected in the area, it was deemed act of God

Kallulal v Hemchand: wall collapsed, resulting in death of respondent’s two children. Court disallowed contention of act of God, as heavy rainfall during rainy season was not extra ordinary.

MISTAKE

Mistake of fact or law generally has no defense in tort. Ignorance of law is not an excuse. For example, entering another’s land thinking it as one’s own is trespass.

Only exception is when defendant can avoid liability by proving he acted under honest but mistaken belief. For example, mistaken prosecution of an innocent man, when police officer arrests the person due to mistaken identity may be excused.

 

Employees are vicariously liable for acts of their servants, but a master may be absolved from mistake of employee, if employee’s mistake is outside course of employment

 

Case Laws:

Consolidated Co v Curtis: auctioneer was held liable for mistakenly auctioning the goods of another person

Hicks v Faulkner: Before charging a prisoner, a police officer must have ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances

PRIVATE DEFENSE

No damage when defendant uses reasonable force for self-defense.

 

1. the use of such force should be absolutely necessary

2. self-defense should be proportional to the invasion. Eg: B cannot cut off A’s hand, if A strikes B

 

Case Laws:

Bird v Holbrook: Plaintiff-trespasser entitled to damage from defendant as spring-guns kept in property, without warning, was excessive than the occasion demanded.

Mudai v Gangan: defendant liable to compensate plaintiff who got electric shock from wire, as he was crossing defendant’s field to reach his house

NECESSITY

An act of damage may be necessity, to prevent a greater damage/ evil. It differs from inevitable accident is that the act is intentional.

Example:

•Throwing goods overboard a ship to lighten it, to survive a storm

•Pulling down a row house to stop the spread of fire

•Performing amputation to save life

 

Case Laws:

Corpe v Sharpoe: trespass upheld, to prevent spread of fire

Kirk v Gregory: defendant was held liable for removing plaintiff’s jewellery to a presumably safer place, since it was not necessary. The jewelry was stolen from the new place.

Leigh v Gladstone: force feeding a prisoner on hunger strike was held as valid defense against assault for battery.

 

Necessity v Private Defense:

In necessity there is infliction of harm on innocent person. In private defense, harm is intended on plaintiff.

STATUTORY AUTHORITY

Damages resulting from act of statutory authority is not actionable, even when it would otherwise be a tort. Eg: policeman detaining a thief

Hammersmith v Brand: value of plaintiff’s property depreciated owing to noise, vibration and smoke by railway track near the property. No damages allowed.

Remoteness of Damage

In common law, remoteness of damage limits the amount of compensatory damages for a wrong if it can be proved all the losses were not directly and immediately attributed to the defendent.

 

Two main test of remoteness:

1.Direct consequences

2.Reasonably foreseeable consequences.

 

Test of Direct Consequence (Re Polemis)

 

If some damage is foreseeable, liability is with the defendant for all the natural and direct consequences flowing from the breach of duty. In Re Polemis [1921] stevedores, who were servants of the defendant, negligently let fall a plank into a ship’s hold containing petrol. Impact caused a spark, igniting petrol vapour, and ship was destroyed. Even though the spark could not have been reasonably foreseen, some damage was foreseeable from the impact. Defendant found liable because the claimant’s loss was direct, though not reasonably foreseeable.

 

Test of Reasonable Foreseeability (Wagon Mound)

 

Liability for the defendant is only for the consequences which could have been foreseen by a “reasonable” man. If the consequences of a wrongful act could have been foreseen by a “reasonable” man, the damages are not remote, and hence the defendant is liable. However, if a “reasonable” man would not have foreseen the consequences of the act, they are remote, and hence the defendant is not liable.

 

The test of foresightedly has been established by Lord Atkin in the landmark case of Donoghue v. Stevenson (1932): “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

 

The test was also established in Wagon Mound (No. 1) [1961]. Defendant carelessly discharged oil from a ship in Sydney Harbour, and the oil floated on the surface of the water towards the claimant’s wharf. The claimant’s servants, welding on the wharf, continued their work after being advised (non-negligently) that it was safe to do so. Sparks from the welding equipment ignited cotton waste mixed up in the oil, and the oil caught fire, destroying the wharf. Defendant was found not liable in negligence, because it was not reasonably foreseeable that the oil might ignite on water in these circumstances. Damage by fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy Council held Re Polemis was no longer good law, and liability

would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.

 

Other Case laws

 

Hughes v Lord Advocate [1963]: two boys who went to explore an unattended man hole with a paraffin lamp suffered from extensive burns as the boy dropped the lamp, causing an explosion in a confined space. Post Office workers were negligence of leaving the site of work unattended with the lamps burning. They owe a reasonable duty of care to prevent the children from entering the site which could be an “allurement” for the children. One of the major issues had been the question of foreseeability in the presence of children on the road. The court held the Post Office failed to forsee the presence of children.

 

Doughty v Turner Manufacturing Company [1964]: Explosion in a factory owing to asbestos lid accidentally knocked into a cauldron of molten liquid. It was not known asbestos could react in that way. Plaintiff, who suffered burns, sued for damage, but court held damage was too remote. It was not foreseeable that an explosion would occur. Whilst it may be foreseeable the lid may have caused a splash resulting in a scold, it was not foreseeable that an explosion would occur resulting in burns.

 

Wyong Shire Council v Shirt (1979): Shirt fell down, struck head, and was parayzed when skiing in a circuit habitually used by water-skiers. Accident was to low depth of water. Shirt claimed being an inexperienced skier, he wanted deep water to ski, and he skied on the basis of a sign in the vicinity which bore the words “DEEP WATER”. The case was dismissed, as a reasonable man would have foreseen that his conduct could create a risk. Court held “To be foreseeable, a risk does not have to be probable or likely to occur. An unlikely risk can still be foreseeable.”

 

Nitco Roadways Pvt. Ltd. vs National Insurance Co. (1985): Weston Electronics sent 60 boxes of T.V. sets from Delhi to Calcutta, through Nitco Roadways Pvt. Ltd. The goods were damaged on the way, and consigner got the value from insurer. When insurer brought suit for recovery, Nitco Roadways pleased accident was due to tyre of the truck carrying the consignment bursting. This was beyond anyone’s control, and could not be foreseen

 

Veeran v. Krishna Moorthy (1966 Kerala High Court): Schoolboys crossing road waited waited for a bus which was coming down from the south to pass, but defendants’ lorry, coming 75 to 100 yards behind the bus, struck the boys. Court held defendants liable because the accident that happened must have been foreseen by the defendants.

NOVUS ACTUS INTERVENIENS

Novus actus interveniens = intervening unforeseeable event that occurs after the defendant’s negligent act and operates to precipitate or worsen the plaintiff’s loss. The defendant is not liable for the loss precipitated or aggravated by such an event.

 

Normally, to claim damage, claimant must establish that the loss they have suffered was caused by the defendant. In most cases a simple application of the ‘but for’ test will resolve the question of causation in tort law. Ie ‘but for’ the defendant’s actions, would the claimant have suffered the loss? If yes, the defendant is not liable. If no, the defendant is liable.

 

Where two or more causes operate concurrently it may be factually impossible to determine which one was the cause. The claimant has to demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant.

 

However, if there is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings (novus actus intervenes), the new event relieves the defendant from responsibility for the eventual outcome, as others may have played an important part. The original defendant may only be liable for contributory negligence, if at all.

 

Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains intact. If the act of a third party is not foreseeable this will break the chain of causation and the defendant is not liable for the actions of the third party:

 

Where the new intervening act is that of the claimant, the test is whether the claimant acted reasonably in the circumstances. If the claimant’s actions are deemed reasonable the chain of causation remains intact and the defendant is liable for the actions of the claimant. If, however, the claimant’s actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant

 

Case Laws:

Sparrow v Arnauld (2013): Plaintiffs’ car got hit as defendant was reversing out of parking lot. As plaintiff got out to enquiry, car slid off. In attempt to regain control of car, plaintiff suffered serious leg damage. Cause of lerg damage was plaintiff negligence to apply handbrake, hence there was novus actus interveneis. Court applied contributory negligence here - held defendant was liable, but 60% of damage was due to plaintiff himself.

 

R v Jordan (1956): defendant stabbed the victim, who died in hospital 8 days later. However, death was due to allergy of antibiotics administered in hospital. At time of death, stab wounds were starting to heal. Court established the direct and immediate cause of death was pneumonia. The court held defendant not liable for the death.

 

R v Smith: defendant stabbed plaintiff twice with his bayonet, puncturing lungs. Victim did not receive appropriate treatment, and medical officer did not diagnose the seriousness of his injuries. The soldier died and the defendant was convicted of murder. He appealed claiming that if the victim had received the appropriate medical treatment he would have survived. The conviction was upheld as the stab wound was the “operating and substantial cause” of death.

Difference between Joint Tort feasors and Independent tort feasors

Tort feasor is a person who committed a tort.

 

Mary Weather v Nixon (1799) established a common rule principle that between joint tort-feasors, there is no right of contribution.

In earlier times, successive actions against other joint tortfeasors was not permitted. Since 1935 legislation, action on one of the joint tortfeasor is no bar on action against another of the joint tortfeasor at a later date.

 

In Merryweather v Nixon case, it was established there can be no contribution between joint tortfeasors and the defendant against whom damage was claimed had to pay up. This was removed by 1935 legislation.

 

The one who pays the damage can claim indemnity from other joint tortfeasors. Eg, if master is paying for the servant’s mistake, master can claim indemnity from the servant.

VICARIOUS LIABILITY

Generally person is liable only for his own wrongful acts, and not for acts done by others. – Vicarious liability is the exception to this general rule, when a person becomes liable for acts done by another person.

 

Vicarious liability manifests in the following instances:

•Liability of principle for tort of his/her agent

•Liability of partner’s for one another’s tort

•Liability of master for tort of servant

Principle-Agent

Based on principle “Qui facit per alium facit per se” = “act of an agent is the act of the principle.”

Joint and several liabilities: Liability on both the person who committed the tort (agent) and also the principle.

 

Authority derived by agent may be express or implied.

 

Lloyd v Grace Smith & co: Managing clerk of real estate company advised plaintiff to sell her two cottages and invest money – made to sign documents which were actually gift deeds in favor of the firm’s proprietor – clerk then sold the properties and misappropriated the money – clerk was acting solely on personal benefit but company held vicariously liable.

Shyama Devi v SBI: Plaintiff’s husband gave money to friend, who was bank employee, for depositing in wife’s account – bank employee misappropriated the money – SC held employee was outside the scope of employment when act was committed and acting in private capacity – hence bank NOT vicariously liable

Omrod v Crossville Motor Services: car owner invited friend to drive his car, which met with accident. Owner held vicariously liable.

Trilok Singh v Kaiolash Bharati: Younger brother took elder brother’s bike without knowledge – elder brother NOT vicariously liable as there is no principle-agent relationship

Partner’s Liability

Liability of partner’s are joint and several: Tort committed by one partner make all partners liable.

Hamlyn v Houston & Co: One partner bribed the plaintiff’s clerk to breach contract with employer – though act done by one partner in his individual capacity, all partners of firm held vicariously liable

Master-Servant

Wrongful act of servant deemed to be wrongful act of master, based on principle of “respondeat superior” = “let principle be liable.

Liability is joint and several

 

Conditions:

 

1. Servant should have committed tort during ‘the course of employment.’

National Insurance Co, Kanpur v Yogendra Nath: servant took car to fill petrol and struck down two cyclists. As it was during course of employment, master held vicariously employable.

Roop Lal v Union of India: Govt made vicariously liable for jawans collecting firewood from plaintiffs property, for camp fire. Court held jawans are on duty 24×7 and campfire is routine activity, so act fell under ambit of “course of employment.”

In Cheshire v Bailey, Servant stealing goods bailed to master, but master not held liable as servant’s act was outside scope of employment. But in Morris v Martin & Co, court held master liable when fur coat given to dry cleaning was stolen by employee. Difference is in Morris case goods were entrusted to employee, in Chesire case, goods were not entrusted to employee and it was a criminal case of theft.

In Beard v London general Omnibus, conductor drove bus when driver was having lunch, and encountered an accident. Bus owner not liable as conductor acted outside scope of employment. However in Ricketts v Thomas Tilling, where driver made conductor drive, and encountered an accident, bus owner was held liable. Here, incident occurred during scope of driver’s employment, and master is liable for driver’s negligence.

In Twine v Beans Express Ltd, master is not liable for driver giving lift in vehicle unauthorized, as it is outside scope of employment. But in Pushpabhai v Ranjit Ginning and Pressing Co, Manager gave lift to another employee and encountered accident. Employer is vicariously liable as manager has authority to permit another employee take lift, and hence act was in course of employment.

 

2. The wrongful act must be authorized by the master. Either the act itself, or the mode of doing the work must be authorized by the master.

Storey v Ashton: One employee persuaded driver, another employee, to take a diversion for some private work, which was not authorized, and encountered an accident. SBI v Shyama Devi is similar.

Century Insurance v Northern Ireland Road Transport: Driver of petrol lorry struck a match, causing explosion. This was held as a negligent way of doing work, implicitly allowed by master, and being under course of employment, master was held liable.

Master will be liable for mistake done by servant, when servant uses erroronus or excessive use of authority entrusted with him. Poland v Parr & Sons: Servant struck a boy suspected of pilferage. Boy fell down, was run over, and lost his leg. Master held liable.

Limpus v London General Omnibus: driver ignored express prohibition not to race, but owner was still held liable for driver’s negligence to follow instructions.

 

3. Act need not be for benefit of master. In Barwick v English Joint Stock Co, act must have been done for the benefit of the master, but this precept has not been accepted as a general principle. In Lloyd v Grace Smith, House of Lord held master is liable if act is during course of business, even if benefit is for servant

SERVANT v/s INDEPENDENT CONTRACTOR

Test of whether person is servant or an independent contractor

Control test: If master controls the work, the subordinate is a servant, and not independent contractor.

Rajasthan State Transport v K N Kothari: RSTC engaged contractor to operate a bus route. Contractor collected fare and exercised control over driver. After an accident RSTC was held vicariously liable

Hilliyer v St Bartholomew Hospital: Hospital authorities not held vicariously liable for negligence as hospital authorities lacked control over professional staff. BUT Cassidy v Ministry of Health: hospital held liable for negligence of house surgeon and other staff was held vicariously liable.

“hire” and “fire” test: If master is able to hire or terminate at will, the subordinate is a servant.

 

Are Independent Contractors Liable?

As a general rule, Employer is NOT vicariously liable for acts of independent contractor.

 

Morgan v Incorporated Central Council: Plaintiff fell down from open lift shaft and sustained injuries – defendants NOT liable as they have given task of maintaining lift shaft to independent contractors

 

Govindarajulu v MLA Govindaraja Mudiliar: lorry entrusted with workshop for repair met with accident as garage worker was driving it – Lorry owner not liable – garage owner is vicariously liable. However, in Ramu Tularam v Amichand, court reversed the decision, making owner of vehicle vicariously liable when vehicle encounters accident when in workshop. The garage is considered as the ‘agent’ of the owner – this however is an erroneous interpretation

 

However, when there is only transfer of service and not transfer of control, principal employer is liable.

Mersey Docks & Harnour v Coggins & Griffith: Harbour board, the permanent employer of crane operators lent crane and operator to stevedores. House of Lords held the Harbour board and not stevedores liable for damage cause by crane operators.

Kundan Kaur v Shankar Singh: owners lend lorry with driver, driver caused accident. Court held there was only transfer of service and not transfer of control, so owner of lorry liable, though lorry was driven for another person

•When there is a “pro hoc vice” (=for the occasion only), where temporary employer is in position of master, temporary employer and NOT principle employer becomes vicariously liable.

Hull v Lees: association supplying nurses to tend to sick not held vicariously liable for negligence of nurses causing injury to patient. Court held nurses were servants of the patient herself and not of association at time of negligence.

Sitaram v Santanuprasad: Owner of car gave it Yakub to drive it as a taxi. Yakub gave taxi to his cleaner fort taking a driving test, and as cleaner was driving, there was an accident. Since master had given car to Yakub only to run as taxi, he was not held vicariously liable.

Exceptions

As a general rule, Employer is NOT vicariously liable for acts of independent contractor. The following instances are exceptions:

 

1. If the act is illegal: If employer authorizes doing the illegal act In Maganbhai v ishwarbhai: illegally drawn electrical line by electrical contractor without informing electricity caused injury to an agriculturist. Both employer and independent contractor held liable, and also owner of the electrical connection which was illegally diverted (as the illegal acts were with the respective knowledge)

2. In cases of strict liability. Rylands v Fetcher case

3. Danger caused near highway: Tarry v Ashton: plaintiff injured by fall of lamp

4. Nuisance to neighbour’s property: When wrong is nuisance is form of withdrawal of support from neighbors land

5. Duty to servants: When tort breaches masters common law duties to servant

Doctrine of Common Employment

Master not liable for harm one servant does to another servant, if wrongdoer and injured are fellow-employees, and engaged in common employed – based on implied contract of acceptance of risk.

Priestly v Fowler (1837) plaintiff injured due to breakdown of overloaded carriage –negligence of co-employee.

This doctrine was much criticized. In UK Law Reforms (Personal Injuries) Act, 1948, abolished this doctrine. The National Insurance (Industrial Injuries) Act 1946 offers now injury, death and disablement benefits.

 

•In Secretary of State v Rukminibhai, court held doctrine of common employment not suitable for Indian conditions.

Governor General in Council v Constance Zena Wells, plaintiffs husband killed owing to negligence of fellow employee, a railway driver. Privy Council upheld doctrine of common employment. But In India, Workman Compensation Act 1923, made this doctrine irrelevant.

Employers Liability Act, 1951 amendment abolished doctrine of common employment in India.

Strict Liability (Rylands v Fletcher)

Rule of Strict Liability: If a person brings and keeps any dangerous thing on his/her land, he/she will be liable for damage caused by such dangerous things, even though he/she was not negligent in its keeping, and did not intent harm.

 

Examples:

•Water from reservoir floods neighbours property

•Animal destroys neighbours crops

•Filth from privy invades neighbour’s house

•Unhealthy fumes and vapours from neighbour’s alkali works

 

Rule was formed by Blackburn J in court of Exchequer Chamber in Ryland v Flecther case (1868): The defendant’s got a reservoir constructed through independent contractor to provide water for mill – there were unused shafts under the reservoir, which contractors neglected to block – when water was filled in reservoir, it burst through shaft and flooded plaintiff’s coal mines. House of Lords held defendant liable even when he was not negligent. Act of God was taken as a defense, but disallowed.

Conditions for strict liability to apply

1. Any dangerous thing should be brought on the land. (eg: water, gas, electricity, vibrations, noxious fumes, explosives etc)

2. The dangerous thing must escape: eg: Branch of a poisonous tree introduces over boundary. But horse nibbling over leaves from poison tree boundary is not case of strict liability.

3. There should be non-natural use of the land. Keeping large quantity of water is non-natural, but keeping water for ordinary domestic purpose is “natural use.”

 

Case Laws:

Sochacki v Sas: fire in a grate in house is natural use of land, and if such fire spreads to adjoin land, strict liability doies not apply.

Balakrishna Menon v TR Subramanian (1968): use of explosives in a maidan even on festival day is non-natural use land, on the basis of Indian Explosives Act. Explosive, instead of shooting up into the sky, went into a tangent into the crowd and exploded, causing injuries. Kerala HC applied Rylands v Fletcher and made festival organizers liable

Exceptions to Strict Liability.

1.Plaintiff’s default: If plaintiff suffers owing to his own intrusion, he has no case. Pointing v Noakes: plaintiff’s horse intruded intro defendant’s property and died by consumption of poisonous leaves. No strict liability applies.

 

2.Act of God (vis major): when circumstance is outside control of human. Eg escape of dangerous good due to unforeseen circumstances or supernatural forces. In Nicols v Marsland, defendant created artificial lakes on his land. Extraordinary rainfall busted the embankments and flooded neighboring property. Since rainfall was extra ordinary, it was act of God, and strict liability does not apply. However, Act of God is not cover-up for negligence. Court will satisfy all possible reasonable precautions have been taken. In MP Electricity Board v Shail Kumar, HC held death due to electric wire falling owing to lightning strike (act of God) would still fall under strict liability case, with no exception.

 

3.Consent of Plaintiff: same as Volunti non fit injuria. When other party consents to the risk, (for some mutual benefit)

Carstair v Taylor: water from top floor leaked and damaged goods on ground floor, without any negligence involved. Since water was stored for mutual benefit, strict liability was excluded

 

4.Act of Third Party: Strict liability does not apply when harm is owing to action of a stranger. Strict liability exempted in Box v Jabb, where overflowing of defendant’s reservoir caused by blocking of a drain by strangers. However, strict liability will apply if act by strangers can be foreseen and precautions were not taken. In Northwestern Utilities v London Guarantee and Accident Co, gas pipe leaked, damaging hotel. Strict liability applied against utility co, who could have forseen the danger, but took no safety precaution.

 

5.Statutory Authority: Act done by state is exempted from strict liability, but there is no exception for negligence by state authorities. In Green v Chelsea waterworks, water company not held liable for pipe burst which flooded premises, as it was indulging in state duty of providing water. In Eastern and South African Telegraph Co v Capetown Tramways, plaintiff’s submarine cable damaged owing to escape of electric current from defendant’s tramways. However, strict liability does not apply as plaintiff has right to enjoy his property, and damage was due to extreme sensitivity of the equipment. Liability only if damage was to “normal” business.

ABSOLUTE LIABILITY (MC Mehta v Union of India)

In Madras Railway Co v Zamindar, it was held due to peculiar Indian conditions, Strict liability or Rylands v Fletcher applies in India only if owner who collects water does not take due care. In this case, tanks which burst and damaged railway bridges was there for ages and used by zamindar’s ryots, and hence zamindar held not negligent.

MC MEHTA V UNION OF INDIA (1987):

Leakage of olium gas from Shriram Foods and Fertilizers Industries in Delhi caused death of one advocate. This came a year after Bhopal gas leak. If Ryland v Fletcher is applied, perpetuators could escape invoking some exceptional case such as act of third party (sabotage). This case established the principle of absolute liability, which is Strict Liability as per Rylands v Fletcher but without any exceptions.

 

When enterprises is engaged in hazardous or inherently dangerous activity, and an accident occurs, the enterprise is strictly and absolutely liable to compensate all affected by the accident, without any exception. The enterprise has a social obligation, and company alone has the resource to discover and guard against the hazards in the first placed.

 

MC Mehta case also established compensation payable to be correlated to magnitude and capacity of the enterprise, to have a deterrent effect.

 

Indian Council for Enviro-Legal Action v Union of India: SC orders polluting industries to compensate discharge of sulfuric acid on Bichhri village. Industries that violate continuously treated as “rogue industries” and its assets attached.

 

BHOPAS GAS TRAGEDY

Leakage of Methyl Isocyanite and other toxic gasses from Union carbide factory in Bhopal on night of December 2/3, 1984 caused 3000+ deaths and several other injuries. Over six Lakh people suffered eye damage, damage to respiratory system and other complications. Large number of cases filed.

 

Attempt for out of court settlement with GOI failed. Finally govt. passed ordinance: Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, and scheme, and based on provision of act, govt. filed a suit on behalf of all claimants in District Court of New York. All earlier suits superseded by this lawsuit. UCC pleaded dismissal on grounds of “forum non conveniens” or wrong jurisdiction. Indian govt. claimed Indian courts not matured enough to handle case of such magnitude. Justice Keeton accepted UCC’s plea of “forum non convenis” and dismissed the case.

 

Case filed in Bhopal District court, which ordered UCC to pay compensation of 350 crores as interim relief, and prohibited from settling individually. MP High Court reduced interim relief to 250 crores.

Based on MC Methta case, Union Carbide becomes liable for absolute liability. Finally on Fe 14 1989, SC made UCC liable for 470 million USD (750 crore rupees). The compensation for each victim was categorized based on extent of damage suffered, such as death, permanent disability, partial disability etc. SC also ordered establishment of full-fledged hospital to cater to gas victims.

SC also held compensation cannot be void on technical grounds of settlement not preceded by notice to persons interested in suit.

 

However, the issue of individual making claim to tribunal set up to award compensation, 74% of claims has been rejected. Fact victim of Bhopal Gas tragedy has not been able to get substantial relief, rehabilitation and proper medical care shows administrative and legal system has failed miserably.

 

In the aftermath of this case, Public Liability Insurance Act (1991) was passed, for proving immediate relief to persons affected by handling of hazardous materials. Law makes it obligatory for every person who has control over handling of hazardous substances to take out insurance.

CAPACITY

[]CORPORATION

Corporation is an artificial person, distinct from its members. Acts done by agents of corporation are deemed to be done by the corporation, and as such corporation be sued for negligence, malicious prosecution, fraudulent misrepresentation etc.

 

Poulton v SW Railway: Station master arrested a person over non-payment of fare. However since station master acted outside his authority, it was ultra-vires and corporation was not held responsible.

Campbell v Paddington Corporation: For liability of tort there is no need to draw distinction between intra vires and ultra vires. A metropolitan borough erected stand on road, which turned out to be public nuisance, and also obstructed view from plaintiff’s house. Plaintiff could not charge for seats to vie King Edward VIIs procession. Court held corporation liable.

MINORS

Minor has right to sue the same way as adults. He /she to bring an action through a major.

Likewise minority is not a defense in law of torts, and minor can be sued in same manner as adult. Only when mental element is required (such as deceit or malicious prosecution) child cannot be held liable.

Parents are generally not liable for child’s tort, except when

•child is father’s agent, in which case father gets vicarious liability

•father, by own negligence, offers an opportunity for child to commit a tort. Bebee v Sales: father supplied airgun to child, who acci9demntly injured plaintiff.

 

Case Laws:

Montreal Tramways v leveille: Canadian SCF allowed minor to sue tramway for deformity, as mother had got injured owing to negligence by defendants.

Ballet v Mingay: minor who hired microphone and amplifier and improperly passed it to a friend held liable for detinue. (wrongful possession of goods)

HUSBAND AND WIFE

In common law, husband and wife could not sue each other. If wife committed a tort, action could be initiated against both husband and wife (husband liable for tort of wife)

Later, wife could sue husband for damage of her property, but not for personal injuries

Wife could sue third-party if husband acting as agent as agent of third party caused injuries (Broom v Morgan)

After 1962 legislation, husband and wife can sue each other, as if unmarried. Also, husband now not liable for tort of wife, or vice versa.

THE STATE IN TORT

[]ACT OF STATE

In common law, the Crown could not be sued. An act of state done in exercise of sovereign power cannot be questioned in municipal courts.

 

Conditions:

1.Act should be injurious to some other state or its subjects. Act of state cannot be done against own subjects. J Hidayatulla “An act of state is an exercise of power against an alien and neither intended nor purposing to be legally founded.”

2.Act may be either provisionally sanctioned or subsequently ratified by the state

3.It should be done by a representative of the state

 

Case Laws:

•Buron v Denman: Captain Denman released slaves and burned slave barracoons owned by plaintiff on West Coast of Africa. Since act was ratified by govt, it was deemed as act of state, and plaintiff was given no damages.

•Raja of Tanjore’s widow challenged doctrine of lapse, but court held East India Company’s act was act of state, and hence cannot be questioned.

•State of Saurastra v Memon Haji Ismail:: Administrator arbitrarily declared sale of property by Raja of Junagarh as invalid and annexed it to state. Since Junagarh was not part of India then, it was considered as act of state.

VICARIOUS LIABILITY OF STATE

In common law, crown could not be sued, and no action could be brought against head of department or other superior officials. However, immunity of crown did not exempt servant from liability. However, with passage of Crown Proceedings Act, 1947, the crown and senior officials are now liable in tort cases. Vicarious liability also applies for act done by servants.

 

As of now, govt is not vicariously liable for sovereign functions, but liable for its non-sovereign functions. Sovereign function is that which only a sovereign can perform (or persons delegated by the sovereign can perform).

 

In India, Article 300 of the constitution states government may sue and be sued.

 

The landmark case is Kasturi Lal v State of UP: Plaintiff, a gold merchant, was taken into custody on suspicion of theft. Constable misappropriated the gold recovered from him and fled to Pakistan. Court refused to give compensation as police was performing sovereign function when arrest was made, and even keeping gold at station was sovereign function.

 

Kasturi Lal’s case has been bypassed in recent times, when courts started considering property entrusted / seized with state as bailment. In State of Gujarat v Memon Mohammed: Custom authorities’ seized trucks for not paying import duties and for smuggling. The vehicles were embezzled by revenue authorities, and govt was asked to pay compensation.

 

Other Case laws:

Peninsular and Oriental Steam Navigation Co v Secretary of State for India: heavy piece of iron from dockyard fell, frightening horse, which bolted and caused damages. As act was non sovereign function, East India Co was held vicariously liable for negligence of its servants

 

Rup Ram v State of Punjab: Rup Ram suffered injuries when his motor cycle hit a truck belonging to PWD. At time of accident, truck was carrying materials to build a bridge, a sovereign function. However, court held state vicariously liable, just as any other employer.

 

Union of India v Harbans Singh: Meals carried from cantonment for distribution to military persons on duty is a sovereign function. As such state not vicariously liable for accident en route.

 

Satyawati Devi v Union of India: Plaintiffs husband died on being struck by vehicle carrying hockey players of Indian Air Force. Court held since carrying teams to play matches could also be done by private individuals, it was not sovereign function, and hence state vicariously liable to compensate victim.

 

Mohammed Shafi v Dr Vilas: running a hospital is not part of the real functions of a state, and as such immunity of sovereign function does not apply. State becomes liable for negligence of doctors.

 

•HSEB v Ram Nath: damage caused by high tension line snapping – ele board held colony was unauthorized – court said state had duty to demolish unauthorized colony, but since it didn’t do so, it becomes laible for loss due to electricity.

 

Chitrachey vs Delhi Dev. Authority: Man falls into drain and dies. DDA held liable as there was no warning or danger sign.

 

Dharanidhar Panda v State of Orrisa: state vicariously liable to compensate for death of two children, owing to collapse of a pillar and boundary wall of school belonging to govt.

 

Verdicts on police actions are mixed

State of Orissa v Padmalochan: Police firing to restrain mob is part of sovereign function, hence no damages. Police officers committing excesses in discharge of their function makes no difference.

•State of MPO v Shantabai: State held vicariously liable when police negligently burst tear gas and firing. Police had a duty that no one in nearby houses should have been injured when firing took place.

Peoples Union of Democratic Rights v State of Bihar: SPO opened fire on peaceful gathering, without provocation. SC held sovereign immunity is subject to fundamental rights, and ordered compensation.

JUDICIAL AND EXECUTIVE AUTHORITY

Judicial officers in discharge of official duties are immune from being sued for tortuous liability, The protection is absolute for acts done within the officer’s jurisdiction, and also if act is outside jurisdiction, but done in good faith.

Sailajanand Pandey v Suresh Chandra Gupta: magistrate order an arrest on mala fide intention. HC entitled he was not entitled to protection, and hence liable for false imprisonment tort.

ABUSE OF LEGAL PROCEDURES

[]MALICIOUS PROSECUTION

Barratry = the bringing of vexatious litigation.

Malicious prosecution is judicial proceeding instituted by one person against another with wrongful or improper motive, and/or no probable cause to sustain it.

 

Malicious prosecution can be in two forms:

1.Maliciously causing a process to be issued, on groundless basis

2.Employing a legal process for something other than which it is intended

 

Test to identify malicious prosecution

1.When averments made in plaint are vague and lacking in details

2.there is insufficient evident presented

 

Onus of proof lies on the person prosecuted. Person has to prove innocence first and then file case for malicious prosecution.

 

Essential ingredients of malicious prosecution

1. There should be prosecution.

Nagendra nath v Basanta Das: plaintiff arrested by police on suspicion of theft and later released. Court held mere police action cannot be grounds for malicious prosecution.

Khagendra nath vc Jacob Chandra: merely bringing the matter before an authority is not malicious prosecution. Mere issue of notice by magistrate is not grounds for malicious prosecution

D N Bandopadhayaya v Union of India: Railway way inspector punished for negligence but later acquitted by court through writ petition. However damage for malicious prosecution not given as court held departmental enquiry is not malicious prosecution.

Kapoor Chand v Jagdish Chand: Court held victim of unfounded proceedings in quasi-judicial bodies also entitled to damages under malicious prosecution

 

2. Prosecution should be initiated by defendant: mere giving of information, even if false information (eg police complaint) is not enough to file tort case against the person. Also, claim for damage should be against person who initiated the prosecution.

Gaya Prasad v Bhagat Singh: conduct of complainant before and after the complaint will determine. If complainant knowing the case is false, tries to mislead the police, there is grounds to file malicious prosecution case against him.

 

3. There should be absence of a reasonable and probable cause

Reasonable caused is a honest belief on the guilt of the accused, upon full conviction, and on reasonable grounds

State of Tripura v Haradhan Chowdhury: timber merchant arrested for allegedly felling trees from a reserve forest. In reality , the felling of trees was under license. Court awarded damages for malicious prosecution.

West Bengal State Electricity Board v Dilip Kumar Ray: Electricity Board employee slapped with FIR for misconduct, but no charge sheet framed, and later decided to drop charges. Employee filed for malicious prosecution and won. In this case, court held there are two essential elements for constituting a malicious prosecution

1. no probable cause exists for instituting the prosecution

2. the prosecution is terminated in some way favourably to the defendant

If these two conditions are fulfilled, victim may file suit for tort damages

CHAMPERTY AND MAINTENANCE

Champetry (from Old French champart, a feudal lord’s share of produce) is an illegal agreement in which a person with no previous interest in a lawsuit finances it with a view to sharing the disputed property if the suit succeeds. It is also known as “litigation finance.” A good example is “ambulance chasers” in USA, where lawyers agree to fight the case for free, and share proceeds that arise from settlements.

 

“Maintenance” is the intermeddling of a disinterested party to encourage a lawsuit, without a just cause. It is maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance.

Swynfen will case scandal: The Swynfen will case was a series of trails over the will of Samuel Swynfen that ran from 1856 to 1864 and raised important questions of ethics in the legal profession.

Champertous contracts can still, depending on jurisdiction, be void for public policy or attract liability for costs.

 

Champetry was abused in medieval England, when unscrupulous nobles and royal officials would lend their names to bolster the credibility of doubtful and fraudulent claims in return for a share of the property recovered. In UK, Maintenance and champerty have not been crimes or torts since the passing of the Criminal Law Act 1967

DISCHARGE OF TORTS

The following are the modes through which liability in Torts can be discharged -

I. Death

II. Judicial Remedies

1.Damages

2.Injunctions

3.Specific Restitution of Property

III. Non-Judicial Remedies

1.Removal of trespasser by force

2.Recaption of chattels (personal belongings)

3.Abatement of nuisance

4.Distress damage feasant

DEATH

“Actio personalis maritur cum persona” = Personal actions of a person die with the person.

In common law, tort cases come to an end if either the plaintiff or the defendant dies.

Balbir Singh Makhol v Sri Ganga Ram Hospital: Suregeon’s bluder resulted in death of complainant’s son. Surgeon dies when case was pending, and case ended.

East India Hotel v Klaus Mittelbarchert, plaintiff died during pendency, and hence compensation awarded initially by single bench was reversed.

 

Exceptions

In case of contractual obligations, claim can be made for or against legal heir

If there was unjust enrichment of a tortfeaser’s estate by wrongly appropriating another’s property, that property is recoverable

 

Law Reforms (Misc Provisions) Act 1934, in UK abrogated common law principle of death ending the case, and now all cases pending for or against will survive, with the will of the deceased.

Morgan v Scouldingh: Plaintiff killed instantly in an accident, and the administrator filed the case. Defendant’s plea to quash case as plaintiff was dead was not allowed, and compensation awarded.

Supreme Bank v P A Tendolkar: SC held only liability will persist after death. Liability of successors would be limited to the extent of estate left by deceased in the hands of the successors.

Baker v Baker: causing death is not a tortable action. It is a criminal action. However, death due to breach of contract is actionable under tort.

Jackson v Wilson: wife died consuming poisonous sardines, plaintiff sued for loss of services of wife owing to defendant’s breach of contract to provide safe food. He won the case.

 

Likewise successors can claim compensation for death due to electrocution and collapse of boundary wall, but there can be no damages for mental anguish. Compensation determined by pecuniary benefit to successors had the victim survived.

Compensation for death in India is through Fatal Accidents Act, Motor Vehicles Act and some other legislation.

 

KSRTC v Saramma Thomas: assessment of damages to compensate depends should take into consideration imponderables such as life expectancy of victim and dependents an amount decreased would have earned for reminder of life.

DAMAGES

Damages are the most important remedy for a tort case. Victim is paid monetary compensation for the wrong suffered by him/her.

 

Nominal Damages: When the tort did not result in substantial damage or injury. Mostly levied in cases of Injuria Sine Damnum or damage without injury (Ashby vs White), where there is only violation of legal rights and no material loss. Mostly awarded to make a legal or symbolic point, but amount may compensate legal cost.

 

Contemptuous Damages: When plaintiff has suffered a wrong but the court feels he/she does not deserve compensation. For example, if the reason for battery was plaintiff’s offensive remarks, judge may think that the plaintiff does not deserve compensation. Amount awarded is trifling.

 

Compensatory damage: Court awards amount equal to the loss, and nothing more.

 

Aggravated Damages: Court awards compensatory damages and compensates something extra, for mental loss.

Laxmi Narayanan v Sumitra Bai: Defendant lured plaintiff promising marriage and raped her. Court awarded substantial damages, considering social stigma.

 

Punitive Damages: Compensation in excess of loss, to make an example and act as deterrent. In Bhim Singh v State of JK, court order punitive damage of Rs 5000/-

•Prospective Damages: Compensation for damages that haven't yet happened but are likely happen because of defendant's tortious action. Subash Chandra v Ram Singh, plaintiff hit by bus was awarded prospective damage of RS 3000/- under probable loss of working capacity.

 

Court decides on damages on a case-by-case basis, considering

1.Nature and circumstances of the injury

2.Relationship of parties and type of risk

3.Principles of remoteness, causation, and mitigation

4.Prevalent rules of liability

5.Whether liability is individual or vicarious

6.Any existing imperfections

INJUNCTIONS

Injunctions is an order of the court directing the doing of some act or restraining the commission or continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of damages is a sufficient relief, injunction may not be granted.

•Temporary and permanent injunction (short term, perpetual)

•Prohibitory and mandatory injunction (eg: do not build a wall, pull down a wall)

EXTRA JUDICIAL REMEDIES

Besides going to the court for justice, a person, in certain situations, can also have recourse to remedies without going to any court. Such remedies are called extra judicial remedies and are availed by a person by his own strength as self-help. These are –

 

1.Removal of trespasser – A person is entitled to remove the trespasser by force.

2.Recaption of chattels (personal belongings) – A person is entitled to take possession of his goods by force.

3.Abatement of nuisance – An occupier of a land is permitted to abate any nuisance that is affecting his land. (eg cut the branch of a protruding tree, without notice)

4.Distress Damage feasant – A person has the right to seize goods or cattle that has strayed on his land until compensation is paid.

LIABILITY OF OCCUPIERS

Occupiers of premises, structures, cars, ship etc owe obligation to people who enter.

 

Current position: Occupier’s liability act lists out nature of responsibility to a lawful visitor. Duty towards trespasser is through common law principles.

 

Obligation towards lawful visitors:

Invitees = when occupier of premises and visitors have common interest. Eg customer in a shop

Occupier to take reasonable care to prevent damage from any unusual danger on premises which occupier knows and ought to have known

 

Indermaur v Dames: gas fitter entered defendant’s premises for testing gas fittings, and fell down from an unfenced opening on upper floor. Defendant held liable

Cates v Mongini Brothers: fan fell down on diners in a restaurant. Fan had latent defect and there was no reasonable care of maintenance. Hence plaintiff liable.

 

Obligation towards Licensees =

Licensees= who enters premises with express or implied permission of occupier, for his own purpose. There is no common interest between occupier and visitor. Eg; Guest who comes home for dinner.

 

Occupier has duty to give due warning of any latent defect or concealed danger of which he is aware. He has no liability for loss due to dangers not known to him.

Fairman v Perpetual Investment: Plaintiff stayed in a building occupied by his sister and owned by defendant. Plaintiff’s feet got struck in a depression. Since depression was obvious, and paintiff was a licensee, no damages.

 

However, since the Occupiers Liability Act of 1957 (UK), distinguishing between invitees and licenses are done away with, and occupiers have a common duty of care, to ensure visitor is reasonably safe for purpose for which he is invited / is permitted to be there.

 

Grantor of license is bound to disclose any defect in property, and not to do anything likely to render property dangerous.

 

City of Ferguson v Marrow: Plaintiff hit head in bottom of swimming pool. Presence of diving board was invitation to use it, and as such pool authorities held liable

Delhi Jal Board v Raj Kumar: DJB has duty to cover manhole

•Municipal Corp of Delhi v Subhagwanti: clock tower fell down, injuring plaintiff. Owner liable for any highway user who suffers damage if building falls down due to lack of maintenance

Kallulal v Hemchand: wall of house collapsed owing to rain, injuring respondents. Court held premises owner liable for non-maintenance

Noble v Hemchand: branch of huge tree growing on defendant’s land and overhanging on highway broke off and damaged plaintiff’s vehicle. Defendant not held liable as fall was due to some latent defect and not owing to negligence.

 

Generally tenant and not landlord is liable for damage to visitors. However, landlord is liable for injury to third party even if tenants are occupiers of the building IF landlord has undertaken a duty to repair.

Mint v Good: landlord could be held liable even if he has only implied right to enter the premises and do necessary repairs.

Kallulal v Hemachand: House owner is directly or indirectly responsible for repair of house adjoining highway.

 

Obligation towards trespassers

Trespasser = one who goes upon land without invitation of any sort, whose presence is unknown to proprietor, and if known, is particularly objected to

When lawful and prohibited areas are demarcated, going to prohibited area counts as trespass.

If occupier acquiesces frequent act of trespass, he is deemed to have tactically licenses the entry of others on land.

 

Lowrey v Walker: public uses defendants’ field as short cut to go to railway station for over 35 years. Defendant had taken no effective step to stop the practice. Once, plaintiff was seriously injured when crossing the field and sued the occupier. It was held plaintiff was there with tacit permission, and as such occupier held liable.

Mokshada Sundari v Union of India: Plaintiff’s husband knocked down to death when crossing a railway track. Deceased was going to get his railway season ticket renewed. Court held though he was going to lawful purpose, he had no legal right to be on the railway track.

Perason v Coleman Brothers: if prohibited area is not clearly demarcated, occupier becomes liable. In this case, child wandered off through restricted area of a zoo and was injured by mauling of lion. Circus had not demarcated off-limit areas, and hence held liable.

 

Occupier has no duty to take reasonable care for protection of trespasser. Trespasser enters the premises at his own risk. Occupier is liable only for his willful acts that cause injury to trespassers. Such wilful act should be something more than reasonable care.

 

For example, if burglar is injured by fall from unrepaired stairs, there is no liability, but if burglar is recklessly attached, there is liability for injury. Reasonable steps to guard property is OK (such as broken glass on top of wall), but unreasonable steps such as spring guns would be actionable.

 

Robert Addie & Sons v Dumbreck: child crushed under a wheel, but child was trespasser and occupier couldn’t know child would be there. Hence no liability.

Ramanuja Mudali v M Gangan: land owner made liable for live wire, which set up without a warning electrocuted a trespasser.

 

Occupiers Liability Act 1957 says owners should be prepared for children who would be less than careful than adults. Occupants have a duty to guard child visitors against dangers.,

Glasgow Corpn v Taylor: dependents who controlled public p[ark held liable when child picked and consumed poisonous berries and died. Though child had no right to pluck berries, defendants had not given sufficient warning, and attractive berries were an allurement for children.

Cooke v Midland Railway Ireland: railway co liable when children passing under turntable got injured. Unlocked turntable was an allurement for children and railways took no reasonable precaution to keep them out.

LIABILITY OF DANGEROUS CHATTELS

When dangerous chattels are transferred from one person to another under contract (with terms of contract express or implied), seller is liable for damages caused by chattel

eg: seller is liable if:

•woolen underwear cause dermatitis to wearer owing to excess chemicals

•milk contained typhoid germs

•hot water bottle burst on normal use

 

In contract of bailment, if goods bailed for hire expose bailee to extraordinary risk, bailer is responsible for loss due to such goods, regardless of whether bailer was aware of such risk or not.

In gratuitous bailment, duty of bailer is only to disclose faults he is aware of.

However, parties are free to negate such liability when making contract

 

Ward v Hobbs: defendant sold herd of pigs that was suffering from typhoid, without disclosing the fact. Many of these pigs and other pigs also died, but defended was held not liable, according to the contract

Hyman v Nye & Sons: carriage hired by plaintiff collapse due to defective bolt, injuring him. Defendant held liable as carriage was not fit for journey. Liability is for tort of negligence

 

When person transfers goods to another person under contract, liability is not just for law of contract, but there is concurrent liability in tort of negligence.

Clark v Army and Navy co-operative society: Plaintiff injured from faulty packing of chlorinated lime she purchased from the defendant. Defendants held liable as they knew of the risk, but neglect to warn the plaintiffs of it.

 

If the transfer was gift, the status remains same

Liability to Ultimate Transferor

If X transfers dangerous chattel to Y, and Y transfers to Z, and Z is injured, X is liable

•Langrage v Levy: Defendant sold gun to plaintiff’s father saying it was manufactured by a reputed co. and safe. Actually it was a substandard gun, which burst when plaintiff used it. Plaintiff was awarded compensation from defendant, as he had made the fraudulent sale to plaintiff’s father, and plaintiffs father’s assurance on gun was on that behalf.

 

If the transferred item is dangerous per se or dangerous suo motto (eg firearms, explosives) those making the transfer have a duty of care. The question is not only whether the item is dangerous by itself, but if circumstances would make it dangerous.

 

Thomas v Winchester: wholesale druggist supposedly supplied dandeilion, a safe medicine, to a retail chemist. However, due to assistant’s negligence, bottle contained a poisonous medicine. Retail chemist sold bottle to country doctor, who gave it to plaintiff, who became seriously ill. Druggist was liable to plaintiff.

Andrew v Hopkins: defendant sold second hand car to finance co, who sold it to plaintiff on hire purchase basis. Car had accident and it was established accident was due to defect ion car. Defendant held liable for not warning plaintiff about condition of car.

Rule of Donague v Stevenson applies when thing reaches ultimate customer as it is.

Kubach v Hollands: manufacturer sold to retail chemist a chemical with notice it must be examined and tested by user before use. Retail chemist sold it to a school without testing, and neither did school do the test. When plaintiff, a school girl used the chemical, an explosion occurred. Retail chemist and not manufacturer were held liable for not testing or asking school to test.

 


An Introduction to the Law of Torts

This book covers the basics of the law of torts, such as what is tort, different between tort, contract and crime, essential conditions of a liability in tort, defenses available when someone accuses you of harming them, the doctrines of strict and absolute liability, liability of occupiers, how to discharge from a tort case, and much more. All points are explained with case studies. This book is useful for LLB students and anyone who has an interest in this crucial branch of law.

  • ISBN: 9781311326904
  • Author: Nayab Naseer
  • Published: 2017-06-09 20:50:11
  • Words: 11835
An Introduction to the Law of Torts An Introduction to the Law of Torts