Lawoftorts Important Questions
Lawoftorts Important Questions
Lawoftorts Important Questions
Ans: “Tort is a civil wrong for which the remedy is a common law activity for
unliquidated damages & which is not exclusively the breach of a contract or the
breach of a trust or other merely equitable obligation”
tort can be defined as a civil wrong which can be redressed by an action for
unliquidated damages and which is other than a mere breach of contract or
breach of trust.
(1) Tort is a civil wrong, Wrong can be civil or criminal. Tort belongs to the
category of civil wrongs. In the case of a civil wrong, the injured party institutes
civil proceedings against the wrongdoer and the remedy is damages. The injured
party is compensated by the defendant for the injury caused to him by the another
party. Whereas in the case of a criminal wrong, the State bring criminal
proceedings against the accused, and the remedy is not compensation.
Punishment is provided to the wrongdoer. In a case where the act results in both
civil as well as criminal wrong then both the civil and criminal remedies would
concurrently be available.
However, if the act involves two or more civil wrongs, one of which may be a tort,
in such a case injured party can either claim damages under law of torts or under
other breach of civil wrong for example, breach of contract, but cannot claim
damages twice.
The definition given by the Salmond fails to underline the essential characteristics
of tortious acts. According to this definition tort is a wrong but it does not explain
what is wrong and what kinds of wrong explaining jural features of tort. Moreover
the expression "civil wrong" itself requires explanation. The definition is more
informative but this is also not perfect.
However, if there is no violation of a legal right, no action can lie in a court despite
of the loss, harm or damage to the plaintiff caused by the defendant. This is
expressed by the maxim 'Damnum sine injuria The detailed discussion of these
two maxims is as follows
In Municipal Board of Agra Verses Asharfi Lal, the facts are, the Plaintiff
(Asharfi Lal) was entitled to be entered as an elector upon the electoral roll. His
name was wrongfully omitted from the electoral roll and he was deprived of his
right to vote. It was held by the court that if any duly qualified citizen or person
entitled to be on the electoral roll of an constituency is omitted from such roll so
as to be deprived of his right to vote, he has suffered a legal wrong, he has been
deprived of a right recognised by law and he has against the person so depriving
him, a remedy, that is, an action lies against a person depriving I him of his right.
An action will lie against a banker, having sufficient funds in his hands belonging
to the customer, for refusing to honour his cheque, although the customer has not
thereby sustained any actual loss or damage, Marzetti Verses Williams Bank
There are many forms of harm of which the law takes no account,
(2) Where the damage is done by a man acting under necessity to prevent
a greater evil,
(4) Where the harm is too trivial, too indefinite or too difficult of proof,
(5) Where the harm done may be of such a nature that a criminal
prosecution is more appropriate for example, in case of public or causing
of death,
Chesmore Verses Richards, The plaintiff, a mill owner was using water for over
60 years from a stream which was chiefly supplied by the percolating
underground water. The defendants dug a well on their land deep enough to stop
the larger volume of water going to plaintiff's stream. Held, that the plaintiff has no
right of action since it was a case of damnum sine injuria.
Bradford Corporation (Mayor of) Verses Pickles, In this case, the defendant
was annoyed when Bradford Corporation refused to purchase his land in
connection with the scheme of water supply for the inhabitants of the town. In the
revenge the defendant sank a shaft over his land intentionally and intercepted the
underground water which was flowing to the reservoir of the plaintiffs. Held, that
the plaintiffs have no cause since the defendant was exercising his lawful right
although the motive was to coerce the plaintiff to buy his land. The House of
Lords approved the ruling in Chesmore Verses Richards
So if there is violation of right then the damages would be paid, but if there are
damages but there is no violation of legal right then there are no remedy i.e no
damages will be paid.
3) Legal Remedy for the wrongful act. As the maxim goes, Ubi jus ibi
remedium, where there is right, there is remedy. If there is a right of plaintiff for
the said wrongful act then the defendant shall get the remedy. If someone
trespasses your property, you have the right to claim remedy in the form of
damages, but if say some government officer on official duty say police or any
other investigative agency comes to your property, then you cannot claim
damages for trespassing as it is his statutory duty and right to come for
investigation purpose, since here the plaintiff does not have the right he shall
have no remedy. If a person is walking on railway track and he meets with the
accident, he or his survivor cannot claim damages from Railway Track as it was
not his right to walk on Railway Track.
Injuria sine damunm is always actionable where as Damnum sine injuria is never
actionable.
First on the basis of nature of wrong, tort is a private wrong. Private wrong is the
infringement of civil right of an individual. It is compara-tively less serious and
labelled as civil wrong. where as crime is a public wrong. Public wrong is a
violation or breach of rights and duties which affect the community, as a wHouse
of Lords e. It is a more serious wrong.
Ninth on the basis of intention, In tort, Intention is important but not in all cases,
for example, in cases of negligence where as in crime, Intention is the crux of the
offence.
Breach of Contract
Distinction between Tort and Breach of Contract
First on the basis of fixation of duty -In tort, the duty is fixed by the law itself
where as In contract, the duty is fixed by the party themselves.
Second on the basis of attribution of duty, -In tort, the duty is towards every
person of the community or society where as In contract, the duty is towards
specific person or persons.
Third on the basis of violation of rights,
A tort is a violation of a right in rem (that is, a right vested in some determinate
person and available against the world at large) where as A breach of contract is
an infringement of a right in personam (that is, of a right available only against
some determinate person or party.
Seventh on the basis of suit by third party, -A third party can sue for tort even
though there was no contract between the person causing injury and the person
injured where as A third party to a contract cannot sue for breach of contract
except in some exceptional cases.
Ninth on the basis of concern, -Law of tort is concerned with losses where as
Contract law is concerned with promises.
Tenth on the basis of period of limitations, -Limitation begins to run from the date
when damages occurs where as Limitation commences when the breach of
obligation takes place.
Res ipsa loquitur – It is based on legal maxim called “Res ipsa loquitur” which
means the thing speaks for itself. In order to use “Res ipsa loquitur ” plaintiff
must show the following:
The court held that doctrine res ipsa loquitur was rightly applied as in the
circumstances of the case the mere fact that there was a fall of the clock tower,
which was exclusively under the ownership and control of the defendant, would
justify raising an inference of negligence so as to establish a prima facie case
against the defendant.
Second on the basis of attribution of duty, -Under law of torts the duty is
towards persons generally where as In a quasi-contract, the duty is always
towards a particular person. The common point between tort and quasi-contract is
that the duty in each case is imposed by the law. However, in certain cases,
where a tort has been committed, the injured party has a choice of not bringing an
action for damages in tort, but of suing the wrongdoer in quasi-contract to recover
the value of the benefit obtained by the wrongdoer. When the injured party elects
to sue in quasi-contract instead of tort, he is said to have 'waived the tort'.
Volenti Non fit Injuria (To a willing person, injury is not done)
The maxim is based on the principle of common sense. If 1 invite you to my
house, can I sue you for trespass. Answer is no, because I have consented to
your entry upon my land. But if a guest who is to be entertained in the drawing
room enters into my bedroom without my permission, he can be sued for
trespass, because his entry into the bedroom is unauthorised. A postman entering
into the house for delivering a letter cannot be sued if he remains within a
permissible limit, because in such a case the consent is inferred but if the
postman crosses that permissible limit he can be sued.
(1) Consent must be freely given, It is necessary for the application of this
maxim that the consent must be freely given. The consent is not free, if it has
been obtained by undue influence, coercion, fraud, misrepresentation, mistake or
the like elements which adversely affects a free consent.
In White Verses Blackmore, the plaintiffs husband paid for admission of his
family for witnessing a car race. During the race a car got entangled in the safety
rope and the plaintiff was catapulated some twenty feet and died consequently. It
was held that since the deceased did not have full knowledge of the risk he was
running from the faulty lay out of the ropes, he did not willingly accept the risk.
Thus, for the maxim volenti nonfit injuria to apply two things are necessary,
Doctrine of assumption of risk does not apply where plaintiff has under an
exigency caused by defendant's wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent danger
of personal injury or death, the defence of leave and license is not applicable to
the plaintiff, whether the person endangered was one to whom he owed a duty of
protection as a member of his family, or was a mere stranger lo whom he owed
no such duty.
In Slaster Verses Clary Cross Company Limited, the plaintiff was struck and
injured by a train driven by the defendant's servant while she was walking along a
narrow tunnel on a railway track owned by the defendant. The defendants, knew it
that the tunnel was used by the members of public and, therefore, they had
instructed their servants to drive vehicle slow while entering the tunnel, The
accident took place because of the negligence of the servant as he did not
observe the instructions. It was held that the defendants were liable. Denning, LJ,
said, "It seems that when this lady walked in the tunnel although it may be said
that she voluntarily took the risk of danger from the running of the railway in the
ordinary and accustomed way, nevertheless, she did not take the risk of
negligence by the driver."
In Dr. J.N. Srivastava Verses Ram Bihari Lal and others, where the doctor
observed after opening the abdomen cavity that patient's appendix was all right
but the operation of Gall-bladder was needful. He proceeded with the operation—
later on the patient died. The Court held that it was not possible to seek the
consent for the Gall-bladder operation. In such situations doctor was not
responsible.
If the plaintiff is not acting under compulsion of any duty, moral or legal he will not
be entitled to recover anything. For instance, in
Cutler Verses United Dairies London Limited., the plaintiff saw a horse
belonging to a driver getting out of his control and voluntarily went to his
assistance and was thrown back by the horse and hurt. It was held that the
maxim applied and the plaintiff was disentitled from recovering damages, as he
knew that the act was fraught with danger and he willingly undertook the same.
Volenti non fit injuria and contributory negligence, In case of volenti non fit
injuria the plaintiff is always aware of the nature and extent of the danger which
he encounters while it is not so in case of contributory negligence. Volenti non fit
injuria is a complete defence while in contributory negligence the claim of the
plaintiff is reduced to the extent the claimant himself was to blame for the loss.
2. Act of God -Act of God includes those consequences, which are occasioned
by elementary force of nature unconnected with the agency of man. Common
examples of Act of God are the falling of a tree, a flash of lightening, a tornado or
a flood.
(1) the event causing damages was the result of natural forces without any
intervention from human agency, and
(2) the event was such that the possibility of such an event could not be
recognized by using reasonable care and foresight.
Whether a particular event amounts to an Act of God is question of fact. Today the
scope of this defense is very limited because with the increase in knowledge the
foresight also increases and it is expected that the possibility of the event could
have been visualized.
In Ramalinga Nadar Verses Narayana Reddiar, the Kerala High Court held that
the criminal activities of the unruly mob cannot be considered to be an Act of God.
3. Inevitable Accident
Inevitable-accident doctrine is a principle of Tort law that says that a person
cannot be liable for an accident that was not foreseeable and that could not have
been prevented by the exercise of reasonable care. Highest degree of caution is
not required. If in the performance of a lawful act, done with all due care, damage
ensues through some unavoidable reason, such damage affords no cause of
action. "People must guard against reasonable probabilities, but they are not
bound to guard against fantastic possibilities.
It is a good defense if the defendant can prove that he did not intend to cause
harm to the plaintiff as well as could not avoid the injury caused by talking
reasonable care. Lets say in case of bodily harm plaintiff has to prove the intend
or negligence of the defendant and if he fails to prove it then it may be considered
to be an inevitable accident. These accidents are not caused intentionally and
could not possibly have been avoided through exercise of ordinary care and
caution on the part of him who causes it.
Distinction between "inevitable accident" and "act of God", Dr. Winfield says that
"an act of God" is much older, much simpler and much more easily grasped by
primitive people than is the idea of 'inevitable accident.' A falling tree, a flash of
lightning, a tornado, or flood presents to the observer a simple and dramatic fact
which a iayman would regard as an excuse for harm done without further
argument.... But the accidents, which are not convulsions of nature, are a very
different matter. To know whether injury from a run away horse was inevitable,
one must ask 'would a careful driver have let it run away'..,. 'Inevitable accident'
differs from the act of God in
(2) being a general defense. All cases of 'inevitable accident' may be divided into
two classes,
An act of God will be extraordinary occurrence due to natural cause, which is not
the result of any human intervention, which could not be avoided by any foresight
and care, for example, a fire caused by lighting. But an accidental fire, though it
might not have resulted from any act or omission of common carrier, cannot be an
act of God.
(4) Private Defence -Private defence is another ground of immunity well known
to the law. No action is maintainable for damage done in the exercise of one's
right of private defence of person or property provided that the force employed for
the purpose is not out of proportion to the harm apprehended. And what may be
lawfully done for oneself in this regard may likewise be done for a wife or
husband, a parent or child, a master or servant. But the force employed must not
be out of proportion to the apparent urgency of the occasion. Thus it is not
justifiable to use a deadly weapon to repel a push or blow with the hand. "Honest
and reasonable belief of immediate danger" is the test. Indian Penal Code
extends the benefit of this defense even in case of causing death in certain
circumstances.
In India the right of private defense has been given a statutory recognition in
Sections 96 to 106 of the Indian Penal Code. Though provisions of these sections
are applicable to the criminal law, the principles contained therein may profitably
be imported into the Law of Torts. Self defense as a permissible defense against
an action in torts has recently been discussed by Orissa High Court in Devendra
Bhai Verses Megha Bhai, the principle extends not only to the right of person to
protect himself but also to protect others' life, his wife, his parents and his child.
He is to use only necessary force or not to use force in excess of what is
necessary.
In Vaughan Verses Taff Valde Rail Company, sparks from an engine of the
respondent's Rail Company, set fire to the appellant's woods on adjoining land.
Held, that since the respondent had taken proper care to prevent the emission of
sparks and they were doing nothing more than that the statute had authorised
them to do, they were not liable.
Similarly, in Hammer Smith Rail Coch Verses Brand, the value of plaintiff's
property had considerably depreciated due to the noise, vibration and smoke
caused by the running of trains. The damage being vibration and smoke caused
by the running of trains. The damage being necessarily incidental to the running
of the trains authorised by the statute, it was held that no action lies for the same.
However, when an act authorised by the legislature is done negligently, then an
action lies.
In Smith Verses London & South Western Railway Company, the servants of
a Railways Company negligently left trimmings of grass and hedges near a rail
line. Sparks from an engine set the material on fire. By a heavy wind the fire was
carried to the nearby plaintiff's cottage which was burnt. Since it was a case of
negligence on the part of the Railways Coch, they were held liable.
Duty of Care Towards the Patient -When a doctor attends to his patient, he
owes him certain duties of care viz.,
In Kusum Sharma Verses Batra Hospital, the Supreme Court held that a doctor
is often called upon to adopt a procedure which involves higher element of risk,
but which he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher chances of failure
and just because a doctor, in view of the gravity of illness, has taken higher
element of risk to redeem the patient out of his/her suffering which did not yield
the desired result may not amount to negligence.
In Malay Kumar Ganguly Verses Sukumar Mukherjee, the Supreme Court held
that standard of care on the part of a medical professional involve the duty to
disclose to patients about risks of serious side effects of medicines or about
alternative treatments. If the doctor/hospital knowingly fail to provide some
amenities that are fundamental for patients, it would certainly amount to medical
malpractice. The Court further observed that an act which may constitute
negligence or even rashness under torts may not amount to same under section
304A of IPC.
In Gian Chand Verses Vinod Kumar Sharma, though the victim was admitted to
the surgical ward she was shifted to the children ward. Due to burn injuries she
could not be clothed. She should have been kept in the warmest place available
and probably for this reason on the first night she was shifted to the children
ward. She should not have been exposed to the vagaries of weather. The doctor
offended to the fact-that the woman had been kept in his ward without his
permission and forced her to leave the ward. The doctor has not given any
explanation as to why he shifted her out. The doctor was not only negligent but
also he was callous in his approach when he forced the parents to shift the child
from the children ward to veranda outside in the cold rainy weather. Thus, the
doctor is liable for the death of the woman.
In Jasbir Kaur Verses State of Punjab, a newly born child was found missing in
the night from the bed. The child was found profusely bleeding and with one eye
totally gouged near the wash-basin of the bath room. The plaintiff contended
replacement of the child whereas the hospital authorities contended that the child
had been taken away by a cat which caused the damage to him. The court
presumed that the hospital authorities were negligent and awarded compensation
amounting Rs. 1 lakh.
Contributory Negligence
the defense of contributory negligence that applies within the realm of tort law this
is the defense that the claimant themselves contributed to the final injury or loss
that occurred. The claim in respect of that damage shall not be defeated by
reason of the fault of the person suffering the damage but the damages
recoverable in respect of
thereof shall be reduced to such an extent that courts thing is just an
equitable or having regard to the claimants share and responsibility of
damage so what it's saying is that if so you establish the tort and then you would
say well this is the damages but if there is a defense of contributory negligence
then you would say X percentage will be reduced from those damages why
because the claimant themselves helped caused the loss that has occurred and
there's the two-stage
test with contributory negligence first is you have to actually prove that the
claimant was actually in fact our fault and then the second thing is you have to
show that this fault was the cause of the damage and did contribute to the
damage so if we look at the first limb thus talking about where is the claimants
own fault so for example in Owens and Brimmell 1977 the guy chose to travel
with the drunken driver therefore there was contributory negligence and in
Stapley and gypsum mines 1953 contrary to instructions the workers chose to
stay in those are unsafe working conditions therefore he had to take a portion of
responsibility for his own loss and finally in the case of Froom Vs butcher failure
to wear seat belt amounts to contributory negligence because you have to take
some responsibility for some of
these actions that you have failed to take so once you can show yes there was an
element of the claimants own fault like not wearing a seat belt then you have to
show that that not wearing a seat belt actually caused the harm
In English Law the rule of Contributory Negligence was demonstrated for the first
time in 1809, in the case of Butterfield Verses Forrester,
The facts were that the defendant for the purpose of making some repairs to his
house, wrongfully obstructed a part of the highway by putting a pole across it. The
plaintiff who was riding on his horse very violently on the road in the evening
collided against the pole and injured. It was also found as a matter of fact that
there I was sufficient light and the pole was visible from a distance of 100 yards.
The court held that the plaintiff had no cause of action against the defendant as
he himself could have avoided the accident by exercising due care.
Ellenborough C.J., stated that "a party is not to cast himself upon an obstruction
which has been made by the fault of another, and avail himself of it, if he dies not
himself use common and ordinary caution to be in the right. One person in fault
will not dispense with another's using ordinary care for himself."
Later, new development took place and the court modified the law by introducing
'Last opportunity rule'. An important case of Devis Verses Mann, illustrate this
rule.
The facts briefly were that the plaintiff left his donkey with its forelegs tied in a
narrow public street. The defendant coming with his wagon at a smart pace
negligently ran over and killed the donkey. The court held the defendant liable
because he had the last opportunity to avoid the accident by the exercise of
ordinary care that is, by going at such a pace as would be likely to avoid the
mischief. It was observed by the court that "although the ass may have been
wrongfully there, still the defendant was bound to go along the road at such a
pace as would be likely to prevent mischief. Were this not so, a man may justify
the driving over goods left on public highway, or even over a man lying asleep
there, or purposely running against a carriage going on the wrong side of the
road.
Q. Discuss with the help of cases act of God and inevitable accidents?
Ans: Act of God – Act of God includes those consequences which are
occasioned by elementary force of nature unconnected with the agency of man.
Common examples of Act of God are the falling of a tree, a flash of lightening, a
tornado or a flood.
The effect of ordinary natural causes may be foreseen and avoided by the
exercise of human care. For example, the fact that rain will leak through a
defective roof is foreseeable. In case of foreseeable causes, failure to take the
necessary precautions constitutes negligence, and the party injured in the
accident may be entitled to damages. An act of God, however, is so extraordinary
and devoid of human agency that reasonable care would not avoid the
consequences. Therefore in such cases the injured party has no right to
damages.
Acts of god are generally attributable to forces of nature. They are generally in the
nature of accidents caused by tornadoes, perils of the sea, extraordinary floods,
and severe ice storms. Snowstorms of great violence have been held to be acts
of God. Whether freezes are acts of God depend on the locality and season of
the year" in which they occur, i.e., their foreseeability is affected to a greater
extent than other natural occurrences by these factors. Catastrophic earthquakes
and volcanic eruptions should be defined as acts of God since they measure up
to the accepted definitions of act of God in every
respect. However, fires are generally not considered acts of god unless they are
caused by lightning. Whether or not a particular natural event warrants such an
adjective is a function of such things as the intensity of the event, characteristics
of the area, and climatic history.
2. Occurrence must be extra ordinary and not one which could have been
guarded against- The basic and prime element of an "act of god" is the happening
of an unforeseeable event. For this, if the harm or loss was caused by a
foreseeable accident that could have been prevented, the party who suffered the
injury has the right to compensation. However, the damage caused by an
unforeseen and uncontrollable natural event is not compensable as it could not
have been prevented or avoided by foresight or prudence of man.
Moreover, courts are of the opinion that the "act of God" defence exists only if the
event is so exceptional and could not have been anticipated or expected by the
long history of climate variations in the locality. It is constructed by only the
memory of man i.e. recorded history. The courts may even demand expert
testimonies to prove that an event was unforeseeable.
Nichols vs Marsland [(1876) 2 ExD 1]- the creation of artificial lake was due to
extra ordinary rainfall which lead to damage to embankments. Water washed
away the four bridges of plaintiff. There was found to be no negligence on the part
of defendant. It was held that defendant are not liable as this accident has been
caused by Act of god.
However great the flood had been, if it had not been greater than floods that had
happened before and might be expected to occur again, the defendant might not
have made out that she was free from fault; but we think she ought not to be
held liable because she did not prevent the effect of an extraordinary act of
nature, which she could not anticipate.
In Clark v. Multnomah, the Court made a decision that the flooding of a house
was not an act of God where it was caused by the breakage of a pipe fitting in the
house. The cause of harm was evidenced by the fact that a repairman had
worked with the part that broke just hours earlier.
ESSENTIALS
There must be operation of natural forces like exceptional rainfall, storms,
tempests etc. without any human intervention.
The incident must be extraordinary and not which could be anticipated and
reasonably be guarded.
1) public nuisance :
Public nuisance does not create a civil cause of action for any person. In order
that an individual may have a private right of action in respect of a public
nuisance, the following must be proved.
1) he must show a particular injury to himself beyond that which is suffered by the
rest of public.
In this case, the plaintiff resided in a house next to a Roman Catholic Chapel of
which the defendant was the priest and the Chapel Bell was Rang at all hours of
the day and night. It was held that the ringing was a public nuisance and the
plaintiff was held entitled to an injunction.
2) Private nuisance :
c) improper use of one's own property resulting in physical injury to the person,
property or comfort of the occupier of another property. Some of the actions for
discomfort are vibrations caused by machinery and dust etc. It is actionable only
as as a nuisance if done maliciously.
Highway :
If a nuisance is created on a highway by a private individual, liability would arise if
any person is injured as a result of what has been done irrespective of
negligence. If anything is placed on a highway which is likely to cause an accident
being an obstruction to those who are using the highway on their lawful occasion
such as vehicle unlighted and unguarded standing there at the night and an
accident results, there is an actionable nuisance.
Held:..a case of nuisance- Lord Selborne LC said: ‘In making out a case of
nuisance of this character, there are always two things to be considered, the right
of the Plaintiff and the right of the Defendant. If the houses adjoining each other
are so built that from the commencement of their existence it is manifest that
each adjoining inhabitant was intended to enjoy his own property for the ordinary
purposes for which it and all the different parts of it were constructed, then so long
as the house is so used there is nothing that can be regarded in law as a
nuisance which the other party has a right to prevent. But, on the other hand, if
either party turns his house, or any portion of it, to unusual purposes in such a
manner as to produce a substantial injury to his neighbour, it appears to me that
that is not according to principle or authority a reasonable use of his own
property; and his neighbour, shewing substantial injury, is entitled to protection. I
do not regard it as a reasonable or as a usual manner of using the front portion of
a dwelling house in such a street as Green Street, that it should be turned into
stables for horses; and, if it is so used, then the proprietor is bound to take care
that it is so used as not to be a substantial annoyance, detrimental to the comfort
and to the value of the neighbours’ property.’
Held
The claim was dismissed as there was no nuisance. The conditions in the factory
were not particularly unusual, and the claimant’s operation of the factory in these
conditions was not unlawful. The defendants had acted as reasonable tenants of
their property. It had been shown that the heat from the factory would not have
damaged ordinary paper. Instead the defendant’s brown paper happened to be
unusually sensitive to the heat, and it was this which caused the damage rather
than anything that the defendants had done wrong. Accordingly, this could not be
considered a nuisance caused by the defendants. Where one carries on an
unusually delicate trade, they cannot then complain because they are injured by
the defendant’s carrying on their lawful business on their property if this would not
have injured anything but an unusually delicate trade.
Noise :
Quietness and freedom from noise are indispensable to the full and free
enjoyment of a dwelling-house. No proprietor has an absolute right to create
noises upon his own land so as to cause nuisance to his neighbours or public. As
to the extent or amount of noise or annoyance from noise is sufficient to sustain
an action depends entirely on the surrounding circumstances like the place where
the time when the alleged nuisance, the mode of committing it, how and the
duration of it, whether temporary or permanent, occasional it is according to that
to that of man of ordinary habits and not of man of fastidious taste, or of over-
sensitive nature. In a locality devoted to noisy trades such as printing and allied
trades, if a printing house or a factory subjects the occupier of an adjoining
residence to such an increase of noise as to interfere substantially with the
ordinary comfort of human existence according to the standard of comfort
prevailing in that locality, occupier to an injunction.
Substantial Interference: Since, tort law aims to maintain a balance between the
right of the occupier to do what he likes and the right of the neighbour not to be
interfered with, it is paramount to show leniency towards the measure of
interference that stems out of proximity between two individuals. Therefore, the
situations of interference enforceable by law must be higher than a certain
magnitude. As Lord Selbourne stated in Gaunt v. Fynney, ‘Such things to offend
against law must be done in a manner, which beyond fair controversy, are to be
regarded as excessive.’ But once again a question of whether an interference is
sufficiently excessive is a question of fact and is different for different cases. The
courts have however devised yardsticks in order to gauge the magnitude of harm
caused to the neighbour. The first is the material damage caused to the land. The
kind of nuisance that causes material damage to land includes collapse of
defendant’s property onto claimant’s land, drenching or flooding, damage by
noxious fumes and damage by vibration etc in which cases almost indisputably
the tort of private nuisance is established. The second is that of the location of the
claimant’s premises. This is given importance by the courts because the
expectations of the claimant in terms of comfort, quiet and peace varies according
to the location of his house or business; also interference which is permissible in
one area may not be permissible in another. A good illustration of the same would
be a successful claim of private nuisance resulting in an injunction on the practice
of prostitution in an adjacent land. There are also secondary requirements like
‘nuisance to servitude’, where in some rare cases law provides remedy for the
interference to luxury of right to a view or right to light.
Reasonable Care
Abatement of Nuisance:
Occupier of land is permitted to abate. To terminate the nuisance by his own act.
E.g if the branches of a tree from neighbouring plot, the plot owner can cut the
over hanging branches.
Q. With the help of relevant case law and legislation discuss the various
principal in the field of contributiry negligence.
Action v. Blundell – The defendants by digging a coal pit intercepted the water
which affected the plaintiff’s well, less than 20 years old, at a distance of about
one mile. Held, they were not liable. It was observed: “The person who owns the
surface, may dig therein and apply all that is there found to his own purposes, at
his free will and pleasure, and that if in the exercise of such rights, he intercepts
or drains off the water collected from underground springs in the neighbour’s well,
this inconvenience to his neighbour falls within description damnum abseque
injuria which cannot become the ground of action.
The case of “Ashby V. White"- the leading case on the maxim is "Ashby V White”
wherein it was held that where a person is injured in the exercise or enjoyment of
a right, an action is maintainable whether or not any material damage has been
caused. W, the returning officer, in a parliamentary election wrongly rejected A’s
vote. The candidates for whom A would have voted were elected. A sued W and
was awarded $200/- damages. In the course of his judgment Hott, C .J., observed
“if a plaintiff has a right, he must of necessity have a means to indicate and
maintain it, and a remedy if he in injured in the exercise or enjoyment of it must
be provided; and indeed it is a vain thing to imaging a right without a remedy for
want of right and want of remedy are reciprocal”.
The case of Ashby V. White is an illustration on the point of “Injuria sine damno In
this case the plaintiff was wrongfully prevented from exercising his right to vote by
the defendant returning officers in a parliamentary election. The candidate for
whom the plaintiff wanted to caste his vote had come out successful in the
election, still the plaintiff could recover damages against the defendants for
maliciously preventing him from exercising his statutory right of voting in the
election. Lord HOTT CJ. observed that there was the infringement of a legal right
vested in the plaintiff hence the defendants were liable. Since no actual damages
were caused, the court awarded $20 by way of recognition of plaintiffs legal right.
Ans: He that filches me of my good name robs me of that which not enriches him
but makes me poor indeep…Shakespere in Othello.
Legal rule: In an action for libel it is no defence to shew that the defendant did not
intend to defame the plaintiff, if reasonable people would think the language to be
defamatory of the plaintiff.
Held: The claim succeeded. The test was not whether the defendant intended to
refer to the plaintiff but whether the words published were understood by
reasonable people who knew the plaintiff to refer to him. Defamation is a tort of
strict liability and does not depend upon the intention of the publisher.
Issue
On appeal, counsel for the appellants contended that the defendant knew that the
document was likely to be taken out of the envelope and read and he must
therefore be responsible for it. The only obligation on the plaintiffs was to show
that the words are susceptible to defamatory meaning. The respondent argued
that there had never been a successful libel claim where the publication had been
sent in an envelope. This should be contrasted with a postcard or telegram where
there is a reasonable inference that the matter would be published.
The Court of Appeal was of the view that it was not right to treat a letter in an
“ungummed” envelope with a halfpenny stamp as though it were an open letter.
Such a letter required some act by a person before they could be read and the
Court could not presume that such letters would be opened in the ordinary course
of business. Therefore, the defendant could not be taken to have known that the
letter would have been taken out of the envelope and there was accordingly no
evidence of publication of the libel in the case.
Issue
Richardson appealed and contended that the findings of the jury were perverse.
Richardson argued that there was no “publication” of the libel because the
defendant could not have anticipated that Theaker’s husband would have opened
the letter. It was conceded that there was no publication other than to Theaker’s
husband. Thus, the key question was whether the libel was published where only
Theaker’s husband had read it.
Held
At the trial of the action, in which the plaintiff claimed, inter alia, damages for libel,
the jury found, in answer to questions left to them, that the defendant anticipated
that someone other than the plaintiff would open and read the letter, and that it
was a natural and probable consequence of the defendant's writing and delivery
of the letter that the plaintiff's husband would open and read it, and they awarded
the plaintiff GBP500 damages.
They are:
(I) the words must be defamatory
(II) They must refer to the plaintiff and
(III) they must be maliciously published.
I. JUSTIFICATION :
Justification connotes that the statement made by the speaker is true. Salmond
says that " he who attacks the reputation of another does so at his peril; and
mistake however Inevitable,is no excuse". But no action will lie for the publication
of a defamatory statement if the defendant pleads and proves that it is true Onus
heavily lies on the defendant to justify the defamatory statements. In Mcnherson
v.Panic Is Little Date J. held, " For the law will not permit a man to recover
damages in respect of an injury to a character which he either does not or ought
not to possess."
ii) Fair comment: When we make any comment without any bad intention that is
said to be fair comment. This efence is available to authors, editors and critics.
The comment must be fair without any malice and bad intention. The said
comment must be in the public interest e.g Rohit makes a comment that Rakesh’s
book is foolish and he must be a weak man then this comment is a fair comment
as he has first read the book and then did the critical comment. Now if he says
that I am not surprised that Rakesh’s book is foolish for him being a weak writer.
Now this comment is made without reading the book and with a prejudice that
Rakesh is a weak writer. While the former is not a defamation but the latter is a fit
case of defamation.
McQuire Vs Western Morning News: The paper had carried an article with a
swingeing condemnation of a musical. It defended the defamation action claiming
fair comment. The comment was “ A three act musical absurdity, written and
composed by T C McQuire is composed of nothin but nonsense of a not very
humrous character, whilst the music is far from attractive”. This is a critical
comment and hence it is not a case of defamation.
Held: Collins MR said that there was no evidence of actual malice, no personal
imputations and no allegations of fact. In these circumstances, if comment was to
be ‘fair’ it had to be relevant and not such as to disclose in itself actual malice
iii) Privelige: Right of free speech out weighs the plaintiff’s right to reputation. We
have two types of priveliges, absolute privelige and qualified privelige.
Absolute Privelige: If no action lies for defamatory statement even if the statement
if false. Sometime it may happen that even if a statement is false still no
defamatory action lies. E;g if in a parliament a parliamentarian makes a statement
and it may happen that the statement is found to be false, still no action lies on
the parliamentarian as parliamentarians have absolute privelige for the
proceedings in parliament.
Qualified Privilege: Action can be taken but if the following conditions are met, no
action can be taken:
a) Statement should be without malice
b) There must be an occasion for making the statement.
Such statements are made while discharging the duty or the statement is made
for protection of an interest.
Courts in India do not impose liability for defamation of the dead. One of the best
comments on this issue was given by honourable Justice R Basant in the
landmark case Raju vs Chacko on 5 September, 2005 (Equivalent citations:
2005 (4) KLT 197) “A claim for compensation for defamation under the civil law
may not be maintainable in respect of defamation of a deceased person on the
principle that a personal right of action dies with the person. (Actio personalis
moritor cum persona). But still the law makers felt that defamation of a deceased
person can legitimately give rise to a criminal prosecution for the offence of
defamation against a deceased person.” The honourable court further elucidated
“Any person may get triggered to commit offences and thus cause breach of the
peace if a deceased member of his family or other near relative of his were
defamed. Accepting this reality in life, Explanation-I has been added to Section
499 IPC to ensure that defamation of a deceased person is also culpable.” The
Honourable court further explained who has the cause of action “The offending
publication should not only be defamatory to the deceased. It must also be
intended to be hurtful to the feelings of his family or other near relative, it is
stipulated. Every lineal descendant or every person interested in the deceased
cannot complain of defamation against the deceased. Firstly, such complainant
must be a member of the family of the deceased or must be a near relative of his.
The words “family or other near relative” significantly are not defined in Section
499 IPC. Such expressions are not defined in the Indian Penal Code. The
expressions “family” and “other relative” are expressions which can have different
shades of meaning depending on the circumstances and the purpose which a
statutory provision is intended to achieve. Any attempt to understand the sweep,
width and amplitude of the expressions “family or other near relative” must
certainly be made conscious of the purpose which Section 499 IPC and
Explanation-I thereto have got to achieve.”
In the landmark case Mrs. Pat Sharpe vs Dwijendra Nath Bose on 12 July,
1963the Honourable court held that “Even if Netaji is dead, it is defamation
because the imputation would have harmed his reputation if alive and the
imputation must be said to have been intended to be hurtful to the feelings of his
family or other near relatives, Thus in any view of the matter the words used do
amount to defamation.”
Who can Sue: The person defamed can only initiate the case of defamation.
Damage to other person does not entitle them to sue.
Rathi daughter of M.C. Verghese was married to T.J. Ponnan. On July 18, 1964,
July 25, 1964 and July30, 1964, Ponnan wrote from Bombay letters to Rathi who
was then residing with her parents at Trivandrum which it is claimed contained
defamatory imputations concerning Verghese. Verghese then filed a complaint in
the Court of the District Magistrate, Trivandrum, against Ponnan charging him
with offence of defamation.
ISSUE RAISED
Ponnan submitted an application raising two preliminary contentions—
(1) that the letters which formed the sole basis of the complaint were inadmissible
in evidence as they were barred by law or expressly prohibited by law from
disclosure; and
(2) that uttering of a libel by a husband to his wife was not “publication” under the
law of India and hence cannot support a charge for defamation, and prayed for
fan order of discharge, and applied that he may be discharged.
JUDGEMENT
DISTRICT COURT
The District Magistrate held that a communication by a husband to his wife or by
a wife to her husband of a matter defamatory of another’ person does not amount
in law to publication, since the husband and wife are one in the eye of the law.
In a revision application filed by Verghese before the Court of Session, the order
was set aside and further enquiry into the complaint was directed. In the view of
the learned Sessions Judge the doctrine of the common law of England that a
communication by one spouse to another of a matter defamatory of another
person does not amount to publication has no application in India, and s. 122 of
the Indian Evidence Act does not prohibit proof in the Court by the complainant of
the letters written by Ponnan to his wife.
HIGH COURT
The case was then carried to the High Court of Kerala in revision. The High Court
set aside the order of the Court of Session and restored the order of the District
Magistrate. The High Court held that from the averments made in paragraphs 9 to
11 of the complaint it was clear that the writing of defamatory matter by Ponnan to
his wife Rathi was not in law publication, and that “if the letters written by Ponnan
to his wife cannot be proved in court either by herself directly or through her
father, in whose hands she had voluntarily placed them, the imputations therein
fell outside the court’s cognizance and no charge under s. 500 Indian Penal Code
could be deemed to be made out”.
ANALYSIS OF SUPREME COURT JUDGEMENT
It was assumed throughout these proceedings that the letters are defamatory of
the complainant. Under the Indian penal Code in order that an offence of
defamation may be committed there must be making or publication of any
imputation concerning any person by words either spoken or intended to be read,
or by signs or by visible representations, intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such person. To
constitute the offence of defamation there must therefore be making or publication
of an imputation concerning any person and the making or publication must be
with intent to harm, or knowing or having reason to believe that such imputation
will harm, the reputation of such person. Unless there is publication there can be
no offence of defamation committed. In England the rule appears to be well
settled that except in certain well defined matters. the husband and wife ,are
regarded as one and in an action for libel disclosure by the husband of the libel to
his wife is not publication. In Wennhak’s case(1) Manisty, J., observed: “ …… the
maxim and principle acted on for centuries is still in existence viz., that as regards
this Case, husband and wife ‘are in point of law one person.” The learned Judge
examined the foundation of the rule and stated that it was, after, all, a question of
public policy or, social policy.
But the rule that husband and wife are one in the eye of law has not been
adopted in its full force under our system of law and certainly not in our criminal
jurisprudence. In Queen Empress v. Butch(2) it was held that there is no
presumption of law that the wife and husband constitute one person in India for
the purpose of the criminal law. If the wife, removing the husband’s property from
his house, does so with dishonest intention, she is guilty of theft. In Abdul Khadar
v. Taib Begum(5) the Madras High Court again held that there is no presumption
of law in India that a wife and husband constitute one person for the purpose of
criminal law, and therefore the English common law doctrine of absolute privilege
cannot prevail in India.
Verghese has complained that he was defamed by the three letters which Ponnan
wrote to Rathi Ponnan, however, says that the letters addressed by him to his
wife are not–except with his consent–admissible in evidence by virtue of s. 122 of
the Indian Evidence Act, and since the only publication pleaded is publication to
his wife and she is prohibited by law from disclosing those letters. no offence of
defamation could be made out. So stated the proposition is in our judgment, not
sustainable. Section 122 of the Indian Evidence Act falls in Ch. IX which deals
with evidence of witnesses in proceeding before the court. That section provides:
“No person who is or has been married shall be compelled to disclose any
communication made to him during marriage by any person to whom he is or has
been married; nor shall be permitted to disclose any such communication. unless
the person who made it, or his representative in interest, consents, except in suits
between married persons, or proceedings in which one married person is
prosecuted for any crime committed against the other.”
Thus, sometimes the statement may prima facie be innocent but because of
some latent or secondary meaning, it may be considered to be defamatory. When
the natural and ordinary meaning is not defamatory but the plaintiff wants to bring
an action for defamation he must prove the latent or secondary meaning that is
innuendo, which makes the statement defamatory. for example, X published a
statement that, "Mrs. Y had given birth to a child." Here, the statement in its
natural meaning is not defamatory. But it may become defamatory in certain
circumstances that is when Mrs.Y pleads that she was married only two months
ago. These particular or additional circumstances in her pleadings is called
"innuendo'.
When the innuendo is proved by the plaintiff, the words which are not defamatory
in the ordinary sense may become defamatory and the defendant will be liable. A
case worth mentioning on this point is that of Cassidy Verses Daily Mirror. The
defendants
Held
The House of Lords held that in the circumstances of this case – as explained by
the facts – the caricature was capable of constituting defamation. In other words,
the publication could have the meaning alleged by the claimant. The Lords also
ordered a new trial limited to the assessment of damages.
The Minister in-charge of consumer affairs in the Central Government and this
minister shall be the chairman of the Council.
The Deputy minister in- charge of consumer affairs in the central government and
this minister shall be the vice-chairman of Council.
The Secretary in-charge of consumer affairs in the Central Government and shall
be secretary of Council.
Eight members of Parliament, five from Lok Sabha and three from Rajya Sabha
and others members from various areas concerning the consumer interest.
Meetings of the Central Council - According section 5 and rules 4 of the CPA,
Central Council is required to House of Lords d at least one meeting every year
and in addition this, additional meetings may also be organized by the Council as
and when necessary. Time and place of the meeting is decided by the chairman
of the Council. The resolution passed by the council is recommendatory not
mandatory.
1) The Minister in- charge of consumer affairs in the State and this Minister shall
be the chairman of the Council.
2) And other official and non-official members representing the interest of the
consumers.
Meetings
Under the Act, State Government is required to House of Lords d at least two
meeting every year and in addition to this, additional meetings may also be
organized as and when necessary. Date and place of the meeting is decided by
the chairman of the Council.
Ans: Donoghue, a Scottish dispute, is a famous case in English law which was
instrumental in shaping the law of tort and the doctrine of negligence in particular.
FACTS
On August 26 1928, Mrs Donoghue's friend bought her a ginger-beer from
Wellmeadow Café1 in Paisley. She consumed about half of the bottle, which was
made of dark opaque glass, when the remainder of the contents was poured into
a tumbler. At this point, the decomposed remains of a snail floated out causing
her alleged shock and severe gastro-enteritis.
Mrs Donoghue was not able to claim through breach of warranty of a contract:
she was not party to any contract. Therefore, she issued proceedings against
Stevenson, the manufacture, which snaked its way up to the House of Lords.
ISSUES
The question for the House of Lords was if the manufacturer owed Mrs
Donoghue a duty of care in the absence of contractual relations contrary to
established case law. Donoghue was effectively a test case to determine if she
had a cause of action, not if she was owed compensation for any damages
suffered.
The law of negligence at the time was very narrow and was invoked only if there
was some established contractual relationship. An earlier case, involving two
children and floating mice, held that:
DECISION/OUTCOME
The House of Lords found for Mrs Donoghue with the leading judgment delivered
by Lord Atkin in a 3-2 majority with Buckmaster L and Tomlin L dissenting. The
ratio decidendi of the case is not straightforward. Indeed, it could be interpreted
as narrow as to establish a duty not to sell opaque bottles of ginger-beer,
containing the decomposed remains of a dead snail, to Scottish widows.
Read more broadly, the decision has several components: first, negligence is
distinct and separate in tort; second, there does not need to be a contractual
relationship for a duty to be established; third, manufacturers owe a duty to the
consumers who they intend to use their product.
However, the primary outcome of Donoghue, and what it is best known for, is the
further development of the neighbour principle by Lord Atkin, who said:
The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer's question, Who is my neighbour? receives a
restricted reply.
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is
my neighbour? The answer seems to be - persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called
in question.
Mrs Donoghue had proved her averments that she had a cause of action in law.
ANALYSIS
Donoghue was not the first case to attempt to sever the dependence of
negligence on contract; a few years previously, Lord Ormidale in Mullen, said, '. . .
it would appear to be reasonable and equitable to House of Lords d that, in the
circumstances and apart altogether from contract, there exists a relationship of
duty as between the maker and the consumer of the beer.' Thus, the doctrine is
based in law and morality. The impact of Donoghue on tort law cannot be
understated; it was a watershed moment effectively establishing tort as separate
from contract law.
Interestingly, the facts were never tested in Donoghue; we will never know if there
was a snail in the bottle.
"You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law, is
my neighbour? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being affected when I am directing my mind to the acts or
omissions which are called in question."
Although the neighbour principle became the guiding light on the issue of the
extent of the duty of care, courts inevitably encountered situations in which it was
necessary to refine and elaborate on its basic thesis. For example, the case of
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) concerned a negligent
statement (rather than an act or omission) made by a bank.
The letter was sent for free. Easipower went into liquidation, and Hedley Byrne
lost £17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence,
claiming that the information was given negligently and was misleading. Heller &
Partners argued there was no duty of care owed regarding the statements, and,
in any case, liability was excluded.
Judgment
The court found that the relationship between the parties was "sufficiently
proximate" as to create a duty of care. It was reasonable for them to have known
that the information that they had given would likely have been relied upon for
entering into a contract of some sort. That would give rise, the court said, to a
"special relationship", in which the defendant would have to take sufficient care in
giving advice to avoid negligence liability. However, on the facts, the disclaimer
was found to be sufficient to discharge any duty created by Heller's actions. There
were no orders for damages, because,
In this context the House of Lords held that a plaintiff could establish a duty of
care only if it could be shown that a special relationship subsisted between the
parties. Lord Reid explained that a special relationship could be found:
“Where it is plain that the party seeking the information or advice was
trusting the other to exercise such a degree of care as the circumstances
required, where it was reasonable for him to do that, and where the other
gave the information or advice when he knew or ought to have known that
the enquirer was relying on him.”
Hedley Byrne thus built further law on the edifice of the neighbour principle and
thereafter the law on the duty of care was further advanced in Caparo Industries
plc v Dickman (1990), again by the House of Lords. In Caparo, Lord Devlin
explained the Hedley Byrne ‘special relationship' as being one of close
proximity broadly equivalent to a contractual relationship. Lord Bridge
enunciated the appropriate policy in terms that have become almost as widely
known as Lord Atkin's original statement:
“The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour;”
Q. Define and discuss strict liability with decided cases. Also discuss Indian
position of principle of strict liability.
Ans: There are situations where a person may be liable for some harm even
though he is not negligent in causing the same or there is not intention to cause
the harm. If a person brings on his land and keeps there any dangerous thing i.e
thing that is likely to do mischief, if it escapes, he will be prima facie answerable
for the harm caused by its escape even though he had not been negligent in
keeping it there. The liability arises not because there was any fault or negligence
on the part of the person but because he kept some dangerous thing on his land
which escaped and caused the damage. Since in such case the liability arise
without any negligence on the part of the defendant, it is known as the Rule of
Strict Liability.
Rylands v Fletcher
Issue
The issue in this case was whether planting a tree could be treated as a non-
natural use of the land in the context and therefore bring the case under the
scope of the rule in Rylands v Fletcher.
Held
Based on principle Sic utere tuo ut alienum non laedas- One must enjoy his
property in such a manner as not to injure any other person.
The court held that the defendant was liable for the damage caused to the
claimant due to his planting of the yew tree. Since the tree had poisonous
properties (at least for some animals), this was a non-natural use of the land. It
could not be an ordinary use to plant trees which have the potential to harm the
livestock of one’s neighbours and this can be seen as bringing something
dangerous onto the land. Further, the tree could be said to have “escaped” the
land as its branches reached out onto neighbouring land, even though the tree
itself obviously did not move.
The principle of strict liability evolved in the case of Rylands v Fletcher.
Judgement: Judge argued that the claimant had the right to enjoy his land free of
interference from water, and that as a result the defendant was guilty of trespass
and the commissioning of a nuisance. Bramwell's argument was affirmed, both by
the Court of Exchequer Chamber and the House of Lords, leading to the
development of the "Rule in Rylands v Fletcher".
Going by the principle laid in this case, it can be said that if a person brings on his
land and keeps some dangerous thing, and such a thing is likely to cause some
damage if it escapes then such person will be answerable for the damaged
caused. The person from whose property such substance escaped will be held
accountable even when he hasn’t been negligent in keeping the substance in his
premises. The liability is imposed on him not because there is any negligence on
his part, but the substance kept on his premises is hazardous and dangerous.
Based on this judicial pronouncement, the concept of strict liability came into
being. There are some essential conditions which should be fulfilled to categorize
a liability under the head of strict liability.
For the purpose of imposing strict liability, a dangerous substance can be defined
as any substance which will cause some mischief or harm if it escapes. Things
like explosives, toxic gasses, electricity, etc. can be termed as dangerous things.
For instance, the defendant has some poisonous plant on his property. Leaves
from the plant enter the property of the plaintiff and is eaten by his cattle, who as
a result die. The defendant will be liable for the loss. But on the other hand, if the
cattle belonging to the plaintiff enter the premises of the defendant and eats the
poisonous leaves and die, the defendant would not be liable. In the judicial
pronouncement of Reads v. Lyons & Co.[2] it was held that if there is no escape,
the defendant cannot be held liable.
Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the
defendant wouldn’t be held liable, as the plaintiff himself came in contact with the
dangerous thing.
In the judicial pronouncement of Ponting v Noakes, the plaintiff’s horse died after
it entered the property of the defendant and ate some poisonous leaves. The
Court held that it was a wrongful intrusion, and the defendant was not to be held
strictly liable for such loss.
In T.C. Balkrishna Menon Verses T.R. Subramanian, the court held that the use
of explosives in an open field on the occasion of festival is a "non-natural" use of
land. If a person stores or marks explosive substances in an open field even on
the occasion of celebration of some festival, that would amount ,to non-natural
use of land and the rule of Rylands Verses Fletcher would apply in such cases.
The retention of water by a person in a portion of his land to prevent its passing
on to the other portions of his land is not an act done in the natural and usual
course of employment and the person so doing is liable, for danger caused
thereby. In State of Punjab Verses Modern Cultivators, damage was caused by
overflow of water from a canal, the Apex Court held that use of land for
construction of a canal system is a normal use and not a non-natural use.
Recently the Karnataka High Court also considered non-natural use of land
inMukesh Textile Mills Verses Subramanyam Sastry, here the defendant was
the owner of a sugar factory. Adjacent to the sugar factory the plaintiff owned
large land. The defendant stored large quantities of molasses which escaped to
the neighbour's land and caused extensive damage to his crop. It was held that it
was non-natural use of land and if a person collected such things on his land and
escaped to neighbours' land, he had a liability.
Defendant's responsibility, The rule only applies to a person who "collects and
keeps" the object on his land. Thus if the object is on the land and it escapes not
by his efforts but in the "ordinary course of nature" he will not be responsible for it,
under Rylands Verses Fletcher.
When a person constructs a dam on his land which has effect of diverting the
water from its natural channel on the land of a neighbour and thereby he causes
damage to it, he is liable to his neighbour. "An owner of property has no right to
let off water which has naturally accumulated therein even for purpose of its
preservation from damage therefrom if this will have the effect of transferring his
misfortune to the property of another."
Act of God: The phrase “act of God” can be defined as an event which is beyond
the control of any human agency. Circumstances which no human foresight can
provide against and of which human prudence is not bound to recognize the
possibility. Such acts happen exclusively due to natural reasons and cannot be
prevented even while exercising caution and foresight. The defendant wouldn’t be
liable for the loss if the dangerous substance escaped because of some
unforeseen and natural event which couldn’t have been controlled in any manner.
e.g In Nicholus of Lords s vs Marsland case the creation of artificial lake was due
to extra ordinary rainfall which lead to damage to embankments. Water washed
away the four bridges of plaintiff. There was found to be no negligence on the part
of defendant. It was held that defendant are not liable as this accident has been
caused by Act of god.
Act of the Third Party: The rule also doesn’t apply when the damage is caused
due to the act of a third party. The third party means that the person is neither the
servant of the defendant, nor the defendant has any contract with them or control
over their work. But where the acts of the third party can be foreseen, the
defendant must take due care. Otherwise, he will be held responsible.
For instance, in the case of Box v Jubb, where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant’s
reservoir, the Court held that the defendant wouldn’t be liable.
Consent of the Plaintiff: This exception follows the principle of violenti non fit
injuria.
For instance, if A and B are neighbors, and they share the same water source
which is situated on the land of A, and if the water escapes and causes damage
to B, he can’t claim damages, as A wouldn’t be liable for the damage.
An Act done under Statutory Authority: An act done under the authority of a
statue is a defence to an action for tort.
The rule of absolute liability, in simple words, can be defined as the rule of strict
liability minus the exceptions. In India, the rule of absolute liability evolved in the
case of MC Mehta v Union of India.This is one of the most landmark judgment
which relates to the concept of absolute liability.
The facts of the case are that some oleum gas leaked in a particular area in Delhi
from industry. Due to the leakage, many people were affected. The Apex Court
then evolved the rule of absolute liability on the rule of strict liability and stated
that the defendant would be liable for the damage caused without considering the
exceptions to the strict liability rule.
The rule laid down in the case of MC Mehta v UOI was also followed by the
Supreme Court while deciding the case of Bhopal Gas Tragedy case. To ensure
that victims of such accidents get quick relief through insurance, the Indian
Legislature passed the Public Liability Insurance Act in the year 1991.
Q. What do you mean by vicarious liability in Tort? Whether a master is
liable for committing fraud, theft by his servant during course of
employment?
Or
What do you mean by vicarious liability? Explain with decided cases.
Answer. Vicarious Liability, As a general rule, a man is liable only for his own
act but there are certain circumstances in which a person is liable for the wrong
committed by others. This is called "vicarious liability", that is, liability incurred for
another. The most common instance is the liability of the master for the wrong
committed by his servants. In these cases liability is joint as well as several. The
plaintiff can sue the actual wrong-doer himself, be he a servant or agent, as well
as his principal. In the words of Salmond, "In general a person is responsible only
for his own acts, but there are exceptional cases in which the law imposes on him
vicarious responsibility for the acts of another, however, blameless himself."
The doctrine of vicarious liability is based on principles which can be summed up
in the following two maxims,
(a) Qui facit per alium facit per se, The maxim means, 'he who acts through
another is deemed in law as doing it himself. The master's responsibility for the
servant's act had also its origin in this principle. The reasoning is that a person
who puts another in his place to do a class of acts in his absence, necessarily
leaves to determine, according to the circumstances that arise, when an act of
that class is to be done and trust him for the manner in which it is done,
consequently he is answerable for the wrong of the person so entrusted either in
the manner of doing such an act, or in doing such an act under circumstances in
which it ought not to have been done, provided what is done is not done from any
caprice of the servant but in the course of the employment.
(b) Respondeat superior, This maxim means that, the superior must be
responsible or let the principal be liable. In such cases not only he who obeys but
also he who command becomes equally liable This rule has its origin in the legal
presumption that all acts done by the servant in and about his master's business
are done by his master's express or implied authority and are, in truth, the act of
the master. It puts the master in the same position as if he had done the act
himself. The master is answerable for every such wrong of the servant as is
committed in the course of his service, though no express command or privity is
proved. Similarly, a principal and agent are jointly and severally liable as joint
wrongdoers for any tort authorised by the former and committed by the latter.
Modern View, In recent times, however, the doctrine of vicarious liability is
justified on the principle other than that embodied in the above-mentioned
maxims. It is now believed that the underlying idea of this doctrine is that of
expediency and public policy. Salmond has rightly remarked in this connection
that "there is one idea which is found in the judgments from the time of Sir John
Holt to that of LordGoddard, namely, public policy."
Modes of vicarious liability, The liability for others wrongful acts or omissions
may arise in one of the following three ways,
(a) Liability by ratification, Where the defendant has authorised or ratified the
particular wrongful act or omission.
(b) Liability arising out of special relationship, Where the defendant stands to
the wrong-doer in a relation which makes the former answerable for wrongs
.committed by the other, though not specifically authorised. This is the most
important form of liability. Liability arising out of master and Servant
In order that the master may be held liable for the tort of his servant following
conditions should be fulfilled,
(1) Tort is committed by the 'servant', and
(2) The servant committed the tort while acting in the course of
employment of his master.
Who is servant?, Lord Thankerton has said that there must be contract of
service between the master and servant has laid down the following four
ingredients.
(1) A servant is an agent who works under the supervision and direction of his
employer. Whare as An independent contractor is one who is his own master.
(2) A servant is a person employed to obey his master's directions from time to
time. Whare as An independent contractor is a person engaged to do certain
works, but to exercise his own discretion as to the mode and time of doing it!
(3) A servant is bound by the orders of his master but an independent contractor
is bound by the terms of his contract.
The trend of the recent decisions of various High Courts is to allow compensation
to the accident victim against the owner of the vehicle and through him, the
insurance company. The aspect of the relationship of the independent contractor
and employer between the mechanic or the workshop and the owner of the
vehicle has been generally ignored, such liability has been recognised on the
basis of the law of agency by considering the owners of the workshop or the
mechanic as an agent of the owner of vehicle.
The recent trend in law to make the master liable for acts which do not strictly fall
within the term 'in course of employment' as ordinarily understood. The owner is
not only liable for the negligence of the driver if that driver is his servant acting in
the course of the employment but also when the driver is with the owner's
consent, driving, the car on the owner's business or for the owner's purposes.
Thus, although the particular act which gives the cause of action may not be
authorised, yet, if the act is done in the course of employment which is
authorised, the master is liable. In other words, "to hold master liable for the
wrongful act of a servant it must be committed in the course of master's business
so as to form part of it, and not merely, coincident in time with it," but if the torts
are committed in any manner beyond the scope of employment the master is
liable only if he was expressly authorised or subsequently ratified them.
Main incidents of Master's Liability, There are six principal ways in which a master
becomes liable for the wrong done by servants in the course of their employment.
4. Wrong' may be a wilful wrong but doing on the master's behalf and with the
intention of serving his purpose.
If a servant performs some act which indicates recklessness in his conduct but
which is within the course of his employment and calculated to serve the interest
of the master, then the latter will be saddled with the responsibility for it.
Q. Discuss the circumstances with the help of decided cases in which torts
are not actionable.
Ans: Volenti non fit injuria- Volenti non fit injuria is a defence of limited application
in tort law. A direct translation of the latin phrase volenti non fit injuria is, 'to one
who volunteers, no harm is done'. Where the defence of volenti applies it
operates as a complete defence absolving the Defendant of all liability. It is often
stated that the Claimant consents to the the risk of harm, however, the defence of
volenti is much more limited in its application and should not be confused with the
defence of consent in relation to trespass. The defence of volenti non fit injuria
requires a freely entered and voluntary agreement by the Claimant, in full
knowledge of the circumstances, to absolve the Defendant of all legal
consequences of their actions. There is a considerable overlap with contributory
negligence and since the introduction of the Law Reform (Contributory
Negligence) Act 1945, the courts have been less willing to make a finding of
volenti preferring to apportion loss between the parties rather than taking an all or
nothing approach.
1. voluntary- The agreement must be voluntary and freely entered for the
defence of volenti non fit injuria to succeed. If the Claimant is not in a position
to exercise free choice, the defence will not succeed. This element is most
commonly seen in relation to employment relationships, rescuers and suicide.
Certain persons were the owners of a racing track for motor cars. The track was
oval in shape and measured two miles or more in circumference. It contained a
long straight stretch known as the finishing straight, which was over 100 feet wide
and was bounded on its outer side by a cement kerb 6 inches in height, beyond
which was a strip of grass 4 feet 5 inches in width enclosed within an iron railing 4
feet 6 inches high. Spectators were admitted on payment to view the races, and
stands were provided in which they could do this in safety, but many persons
preferred to stand along and outside the railing. Among the competing cars in a
long distance race on this track two cars were running along the finishing straight
at a pace of over 100 miles an hour and were approaching a sharp bend to the
left; the car in front and more to the left turned to the right; the other car did the
same, but in so doing touched the off side of the first mentioned car, with the
strange result that the first mentioned car shot into the air over the kerb and the
grass margin and into the railing, killing two spectators and injuring others. The
course was opened in 1907. No accident like this had ever happened before.
In an action by one of the injured spectators against the owners of the racing
track the jury found that the defendants were negligent in that having invited the
public to witness a highly dangerous sport they had failed by notices or otherwise
to give warning of, or protection from, the dangers incident thereto, and to keep
spectators at a safe distance from the track. Judgment having been given for the
plaintiff on these findings: -
Held, that it was the duty of the appellant s to see that the course was as free
from danger as reasonable care and skill could make it, but that they were not
insurers against accidents which no reasonable diligence could foresee or against
dangers inherent in a sport which any reasonable spectator can foresee and of
which he takes the risk, and consequently that there was no, evidence to support
the verdict of the jury.
2. Agreement- The second requirement for the defence of volenti non fit injuria is
agreement. The agreement may be express or implied. An example of an express
agreement would be where there exists a contractual term or notice. However,
this would be subject to the controls of s.2 of the Unfair Contract Terms Act 1977.
An implied agreement may exist where the Claimant's action in the circumstances
demonstrates a willingness to accept not only the physical risks but also the legal
risks.
Nettleship v Weston [1971] 3 WLR 370
The defendant was a learner driver. She was taking lessons from a friend. The
friend checked that the defendant's insurance covered her for passengers before
agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr
Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to
straighten the wheel. She approached the pavement and Mr Nettleship grabbed
the handbrake and tried to straighten the wheel but it was too late. She mounted
the pavement and hit a lamp post. Mr Nettleship fractured his knee. The
defendant argued that the standard of care should be lowered for learner drivers
and she also raised the defence of volenti non fit injuria in that in agreeing to get
in the car knowing she was a learner, he had voluntarily accepted the risk.
The issue was whether the defence applied in this case, given that the claimant
was within the ring rather than behind the protective barriers.
Held- The High Court held the defendant not liable. The High Court held that for
the defence of volenti non fit injuria to apply, it was not enough that the claimant
consented to a generic risk of injury. Rather, the claimant had to consent to the
lack of reasonable care which produced the risk. This requires the claimant to
have complete knowledge and understanding of the extent and nature of the risk.
In the case sporting events, however, spectators can be taken to know of and
consent to the risk of the sportsman making errors of judgement or skill, given the
fast-paced nature of the activity, unless the sportsman was acting with deliberate
or reckless disregard for the spectator’s safety.
In this case, the sportsman merely made an error of judgement, and the claimant
had chosen to position himself close enough to risk such errors affecting h
Padmavati V. Dugganaika -
Fact- While driver was taking petrol at petrol pump, two strangers took lift in a
jeep. Suddenly front wheel failed and Jeep become uncontrolled ,both the
strangers thrown away, one of them instantly died. and another was injured.
Held - Here plaintiff was not held liable because, strangers voluntarily took lift.
A: Felonious Torts- When an Act amounts to both a tort and a crime (felony), it is
called felonious tort. For example, assault, defamation, malicious prosecution etc.
In England, prior to 1967, the doctrine of merger of tort is felony was applied. So,
a suit under the law of torts could be filed, unless the person first prosecuted in a
criminal Court. In 1967, however, this rule was abolished in England. In India, the
rule of merger of tort in felony had never been accepted. So a person can always
be sued for a tort, although the Act also amounts to a crime, without first
instituting criminal proceedings against him.
18) Head Constable runs away with the deposit at Malkahana. Will the owner of
get his deposit back? Refer to decided case.
A: The answer to this question is based on the fact and principles of law laid down
in Kasturi Lal v. State of U.P. (1956). In this case the police officers of the State of
U.P., acting in the exercise of their statutory powers, sized gold from the
appellant, and as a result of their negligence on dealing with its safe custody, the
gold was not returned to him. In a suit filed by him against the State for the return
of the gold, or its value, it was held by Supreme Court that the Act was committed
by the employees of the State during the course of employment, and the
employment in question being of the category which could claim the special
characteristics of sovereign power, the appellant’s claim could not succeed.
19) How far “Doctrine of Common Employment” is a defense for master’s liability
to servant?
A: The Doctrine of Common Employment – Prior to 1948, a master was not liable
for negligent harm to his servant by another servant engaged in common
employment with him. In order to successfully plead this defense, the master has
to show:
(a) That the servant who is injured as well as the servant causing such injury were
in the service of the same employer.
(b) The injured servant was engaged in a common employment in the sense that
the safety of one servant would, in the ordinary and natural course of things,
depend on the care and skill of the other servants. However, after 1948, this
defense of common employment has been taken away by the ‘Law Reform
(Personal Injuries) Acts, 1948. Under this Act, it is no defense to an employer to
contend that he is not liable because the injury was caused by the negligence of a
fellow-employee. Any contract between the master and servant, which excludes
the master’s liability on the ground of common employment, is also declared to be
void.
20) Define the term ‘Spurious goods and Services’ under Consumer Protection
Act?
A: Such goods and services which are claimed to be genuine but they are not
actually so.
21) Define the term ‘Class Action’ under Consumer Protection Act?
A: One or more consumers where there are numerous consumer having the
same interest.
Q. Concept of Liability without Fault” in motor insurance? How Motor Vehicle Act
deals with without fault liability?
Ans: • Sec 140 speaks about liability to pay compensation in case of death or
permanent disability.
Sec 140 of Motor Vehicles Act, 1988 deals with the liability without fault. The
claimant involved in a motor vehicle accident is not required to prove wrongful
act, neglect, or default on the part of the owner of the vehicle or by any other
person.
The claim under these provisions is neither defeated or affected in any way, by
any wrongful act, neglect or default on the part of the claimant; nor can be of the
claimant’s share of responsibility for the accident. In other words, the legal
defense of ‘contributory negligence’ is not available to the motorist and his
insurer.
These provisions apply in cases where the claimant suffers death or permanent
disablement, as defined in the Act. The amounts of compensation are fixed as
follows:
Death, Rs, 50,000
Where no-fault liability is concerned, there is clearly a departure from the usual
common law principle that a claimant should establish negligence on the part of
the owner or driver of the motor vehicle before claiming any compensation for
death or permanent disablement arising out of a motor vehicle accident.
Thus the claims for death or permanent disablement can also b e pursued under
other provisions of the Act on the basis of negligence. The motorist i.e. the
owner of the vehicle or driver of the vehicle is liable to pay compensation on the
basis of ‘no fault’ as well as on the basis of ‘fault’ or negligence he has to pay first
the compensation on ‘no fault’ basis i.e. Rs. 550,000 or Rs. 25,000 as the case
may be, for death or permanent disablement.
Sec. 143 of the Act will also apply in relation to any claim for compensation in
respect of death or permanent disablement of any person under the Workmen’s
Compensation Act, 1923, resulting from a motor accident. Time limit for
depositing compensation under this section is one month.
In Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani case it was held by
the Double Bench of the Mumbai High Court that the phrase ‘has resulted from’
occurring in section 140 of the Motor Vehicles Act, 1988 does not require the
death to have occurred in the accident itself. The section is attracted even where
death is result or the consequence of the accident arising out of a motor vehicle.
What is necessary to see is whether the death is the consequence of an accident
arising out of use of motor vehicle.
In New India Assurance Co. Ltd v. Mehebubanbibi case the deceased was
deputed by his employer to carry a damaged transformer in a tractor. The tractor
fell in to a ditch. The deceased was pressed under the damaged transformer,
sustained injuries and died in hospital. Death of the deceased had arisen out of
and in course of his employment. Though the case was not one of no fault liability,
but as the accident had occurred due to negligence of the driver of the tractor, yet
the fact of the case attract for a claim of double compensation under two different
laws, irrespective of whether the claim is based on fault liability or on no fault
liability.