Contents

Introduction 2
Tort v. Torts 2
Essential Ingredients of a Tort 2
Injuria sine damno: 3
Damnum sine injuria: 3
Intent and Motive 5
Vicarious Liability: 5
Principles of Law in the same 6
Essentials of Vicarious Liability 6
Master-servant relationship 6
Control Test: 8
Organizational test: 8
Course of Employment: 8
Criminal Acts: 9
Negligence: 11
Unauthorized delegation of authority: 12
Specific Prohibition: 13
Vicarious Liability of the State 14
Timeline of state liability in law: 15
Timeline via cases: 15
Negligence 21
Essentials of law: 21
Reasonable man 23
Special rules: 25
Contributory Negligence: 29
Strict and Absolute Liability 32

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 Introduction
Law is divided into civil and criminal law
Civil Criminal
1. Plaintiff prosecution
2. State Suspect
3. Damages Imprisonment and fine
4. Civil courts Criminal courts

There is however an overlap between civil and criminal law in some cases. For example, if
we consider the offence of defamation, it has a civil and criminal aspect. Thus, it is wrong to
classify both as mutually exclusive categories of law.
Tort law is a part of civil law. It is an uncodified part of civil law, and is a right in rem
(available against the world at large).
“Tortuous liability arises from the breach of duty primarily fixed by law, such duty is towards
person generally and its breach is redressable by an action for unliquidated damages”
● Primarily fixed by law – there is no contract as in contract law to fix duty of care and
stuff in tor law, it is already present.
● Duty towards person generally – this means it is a right in rem and is available against
the world at large, unlike contract law where damages can be claimed only against the
person with whom a contract has been entered into. Essentially the world owes you a
duty of care.
● Unliquidated damages – unlike a contract where damages are fixed in case of a
violation of contract, damages in tort law are determined based on the extent of
damage, which in turn depends on the facts of the case in question. Hence damages
can’t be decided beforehand.
Tortious liability cannot be fixed by agreement, it is always there.

Tort v. Torts
Tort – Winfield prefers this definition. He feels that tort law is wide scoped and every wrong
act which cannot be legally justified constitutes a tort.
Torts – Salmond prefers this definition. He feels that there are a certain number of specific
wrongs (pigeonholes per se) which constitute torts, and that the courts do not normally evolve
new torts as felt by Winfield.
Salmond’s definition is more in consonance with the existing reality.

Essential Ingredients of a Tort

1. There must be an Act/ Omission by the defendant.

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 2. This act/omission must result in an injury to a person’s legal rights, not his moral or
social rights. Thus, moral wrongs such as not saving a drowning child are not liable
for owing a duty of care.
Note –
Both act and omission are included. Further this act or omission must be one recognized
under law. The wrongful act must be within the ambit of law. Denying sale of drugs isn’t
violative of a person’s legal right to choose. Keep this in mind in answering questions.
When 2 or more civil wrongs are committed, can be sued only for one.
I. First method of imposing tortious liability – breach of legal duty.
● Injuria sine damno (legal injury with/without damage is a tort)
● Damnum sine injuria (damage without infringement of legal rights isn’t a tort)

Injuria sine damno:

It means a violation of a person’s legal rights with/without damages to prove tortious
liability. The violation of legal rights is itself enough to constitute the tort, the damages add to
the quantum of compensation which can be awarded.
Actionable per se – means that damages do not need to be proved.
In the imposition of this, the court asks 2 questions
1. Is the defendant liable
2. If yes, to what extent?

Ashby v. White – 1703

The plaintiff was qualified voter at a parliamentary election. Defendant was returning officer
who wrongfully restrained plaintiff from franchise. Voting is a legally recognized right.
No loss was caused – but held, that plaintiff can recover. One pound awarded as
compensation even though his fav candidate won.
“Every injury imports a damage, though it does not cost the party one farthing” CJ. Holt.

Bhim Singh v. State of Jammu and Kashmir – 1985

the plaintiff, MLA in J&K was wrongfully detained by the police – which ultimately
prevented him from attending the Assembly session. He was prevented from casting his vote
over there by virtue of this arrest.
By the time Supreme Court was moved – he was released – but as a consequent relief, a
damage amounting to Rs.50,000 was awarded to him. Legal right violated was that he was
not produced before the magistrate within the prescribed 24-hour time frame.
in such cases loss suffered by the plaintiff is not relevant for the purpose of a cause of action
it may be relevant only as regards the measure of damages.

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 Damnum sine injuria:
The principle of Damnum sine injuria essentially means that no matter the quantum of
damage incurred by the plaintiff, the defendant cannot be held liable for the same unless a
violation of a legal right has taken place when the damage was caused. Thus, no cause of
action will arise in such cases and no relief, no matter what quantum of damage is there.

Gloucester Grammar School case

The defendant, a school master, set up a rival school to that of the plaintiffs, which created
competition
The plaintiff had to reduce the fees for his scholars
“As if I have a mill and my neighbor builds another mill whereby the profit of my mill is
diminished, I shall have no action against him, although I am damaged…”

Action v. Blundell (1848)

The defendants by digging a coal-pit intercepted the water which affected the plaintiff’s well
which was at the distance of about a mile
“The person who owns the surface, may dig therein and apply all that is 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 neighbor's well, this
inconvenience to his neighbor falls within description damnum sine injuria”

Ushaben v Bhagyalakshmi Chitra Mandir (1976)

Injunction was sought against exhibition of ‘jai santoshi maa’ a feature film
Petitioners contended that the film hurts their religious sentiments
But the relief was denied – stating that hurt to ‘religious sentiment’ is not recognized as legal
right. Doctrine of imminent danger was used in this case to come to a conclusion as to why
it’s not a violation of legal rights (Art. 19(1)(a) upheld since no imminent danger by the film).

Ajay Gautam v. Union of India (2015)

Filed as PIL under article 226, seeking to restrain the release of the film PK on the grounds
that it hurt the religious sentiments of all communities, mainly Hindus.
This petition was dismissed.

Rashttravadi Shiv Sena vs Sanjay Leela Bhansali Films Pvt. Ltd (2013)

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The film ramleela was found to do nothing with lord ram but was filled with vulgarity, sex
and violence. Hence petitioners wanted a ban on the film release. However, the petition was
dismissed.

Intent and Motive

If I kill someone,
Intent is – whether I wanted to kill that person
Motive is – why I wanted to kill that person
Malice is more than an evil motive in itself
However, in the law of torts, the motive intent or malice have no bearing in the outcome of
the case like they do in criminal law. While intent matters in 1% cases, for the sake of
simplicity we assume that intent does not matter in torts. As earlier, we can use precedent to
show the same.
“Intention signifies full advertence in the mind of the defendant to his conduct which is in
question and to its consequences together with a desire for those consequences”
The ‘malice in law’ denotes an act done wrongfully without just cause or excuse – it does not
denote as in common usage an act dictated by angry feeling or vindictive motive.
For these reasons, it is much more than a mere angry feeling and is an evil motive without
just cause.

Mayor of Bradford v. Pickles – 1895

Pickles with the malice intent – draw water from his land so which percolated through the
soil of his land in unknown and undefined channels from the land of the corporation
The corporation sued for an injunction to restrain Pickles from diminishing or polluting their
water is wrong as it was backed by ill motive
The court did not accept the contention

Town Area Committee v Prabhu Dayal – 1974, AIR 1975

Suit for compensation was filed by the plaintiff against the Town Area Committee for the
demolition of his constructions protruding on to the road, without due notice. Prabhu Dayal
alleged that the action was mala fide in nature.
Court found that the plaintiff himself was guilty of constructing the building illegally without
obtaining proper sanction from Town Area Committee
Held, that demolition of an unauthorized building is not injuria to the owner and therefore,
can’t get compensation
Thus, this case also shows that intent or malice is irrelevant, only the violation of a legal right
matters.

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 Vicarious Liability:
Vicarious Liability – liability incurred by A for the wrongful acts of B committed against
C
Justification:
1. Master is better able to withstand the loss and is insured also against it. He can also
distribute the loss in society by raising the price of his good

3. Further, the master will be held accountable ensuring that he takes care of his
workplace by fixing accountability and making it a safer and better place.

2. Further, this ensures a higher quantum of compensation as a source placed better

financially will compensate the aggrieved.

Principles of Law in the same

Respondeat Superior – let the principal be liable
qui facit per alium facit per se - he who does an act through another is deemed in law to do it
himself
essentially, master is held liable for the wrongful acts of his servant

Essentials of Vicarious Liability

1. Existence of a master servant relationship
2. The act must be done during the course of employment
These 2 are criterion which we delve into cases for:

Master-servant relationship
It would be pertinent to distinguish between a servant and an independent contractor
Servant Independent Contractor
told what to do and how to do it (dual told what to do only (uni-command)
command)
Liable for actions in course of employment Not liable for actions of an independent
contractor
Controlled by the master Not controlled by the master

(An independent contractor) is one who undertakes to produce a given result, but so that in
the actual execution of the work, he is not under the order or control of the person for whom
he does it, and may use his own discretion in things not specified beforehand.

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However, even if we distinguish between the two, this may hold good in olden days with
simpler societies. However, this doesn’t hold good in the modern society we know and speak
of today, with managers under employers and more complex relations.
Thus, this control test falls short in the modern era. The test of mere hire and fire cannot be
used in such cases today.

Hillyer v St. Bartholomew’s Hospital (1909)

Question was regarding the liability of the hospital authorities for the negligence of their
doctors involving professional care and skill
Held that, hospital authorities are not vicariously liable; for they lacked power of controlling
them.
They used the outdated control test in the above case, which has been modified to an
organizational test in Cassidy.

Cassidy v Ministry of Health (1951)

The case was one for damages against the hospital where the hand of the plaintiff was
rendered useless post the operation.
it is no answer for them to say that their staff are professional men and women who do not
tolerate any interference by their lay masters in the way they do their work. the doctor who
treats a patient in the walton hospital can say equally with the ship’s captain who sails his
ship from liverpool, and with the crane driver who works his crane in the docks,
I take no orders from anybody’, that ‘sturdy answer’ as Lord Simonds described it, only
means in each case that he is a skilled man who knows his work and will carry it out in his
own way, but it does not mean that the authorities who employ him are not liable for his
negligence...
(In conclusion) if the plaintiff had to prove that, some particular doctor or nurse was
negligent, he would not be able to do it. but he was not put to that impossible task; he says ‘i
went into the hospital to be cured of two stiff fingers. i have come out with four stiff fingers,
and my hand is useless. that should not have happened if due care had been used. explain it,
if you can. i am quite clearly of the opinion that, that raises a prima facie case against the
hospital authorities...
It does not matter whether the doctor is employed on a contract of service or a contract for
service, as long as he is employed by the hospital, he is liable. Further, when the doctor is
paid by the hospital authorities, the hospital is vicariously liable for the actions. If the patient
goes to a doctor and pays him, it isn’t hospital’s liability.

Maharaja Agrasen Hospital v. Master Rishabh Sharma (2019)

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Here, an infant child went blind because of the medical negligence of the hospitals in
conducting the requisite test within the required time. The Hospital was held vicariously
liable for the acts of the court, where the court held that – The consequential damage caused
to the baby by not having conducted the mandatory ROP test to check if the retina of the eyes
are fine in such pre-mature babies born before 32 weeks of the gestation period, which led to
the total blindness of the baby, has given rise to an actionable claim of negligence.
It is well established that a hospital is vicariously liable for the acts of negligence committed
by the doctors engaged or empanelled to provide medical care. It is common experience that
when a patient goes to a hospital, he/she goes there on account of the reputation of
the hospital, and with the hope that due and proper care will be taken by
the hospital authorities. If the hospital fails to discharge their duties through their doctors,
being employed on job basis or employed on contract basis, it is the hospital which has to
justify the acts of commission or omission on behalf of their doctors.

Control Test:
Outdated model – the test of hire and fire – if u can hire and fire a so-called employee, he is
the servant in the master servant relationship.
We consider many factors in a case to check control, be it mode of payment, the tools used,
freedom available, power of dismissal, skill available
The control test has had many stages
Slavery era – first stage – liable for all acts of slave
Second stage – command theory – commanded the act (get me chips)
Third stage – commanded the VERY act done (kill him to get me chips)
Fourth stage – implied command theory – whether the consent was implied through
behaviour of the party.
Fifth stage – modern organisational test
This implied command theory has been replaced by the course of employment theory so
that’s the next thing we’ll do. It’s not easy to understand implied command alone, but via
course of employment its easy.

Organizational test:
The test of being a servant depends on whether he is a part and parcel of the organization, not
on orders and hire and fire.
• How central the activity is to the enterprise?
• How far the activity is a central part of the employer’s business from the point of view
of the objectives of that business
• The integration of the business (whether the activity is integrated into the
organizational structure of the enterprise). This may mean that under the organization

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 everyone has a role (manager, worker etc.) whether this activity is falling under one of
these roles of organization.
Note – control transitioned into organizational, no overruled or something.

Course of Employment:
Course of employment is a dynamic concept, constantly evolving.
Master can be held liable for authorized acts of servant and unauthorized modes of doing an
authorized act. These include:
1. Criminal Acts
2. Negligence of servant
3. Working under specific prohibition

Criminal Acts:
Barwick v. English Joint Stock Bank (1867)
The manager of the bank gave surety to the company to supply oats and any money to be paid
would be paid by them. However, when time come to pay the money, bank categorically
refused, saying that manager acted on his own behalf.
Held as an unauthorised mode of doing an authorised act. Manager was held liable. "The
master is answerable for every such wrong of the servant or agent as is committed in the
course of the service, and for the master's benefit.”
However, masters benefit not specified. However, no need to go ahead as it was overruled.
The impression was that master would be held liable for ALL acts of the employee because
even though mentioned for master’s benefit, the act in question didn’t benefit the master.

Chesire v. Bailey (1905)

Servant stole third-parties’ goods of precious metal like silver from the wagon which he was
driving and the plaintiff was riding it. Question was to hold master liable. It is unauthorised
mode of authorised act according to plaintiff.
However, the judge held that it is a criminal act, and master cannot be held liable. Further,
the act benefitted himself and not master, and hence not within course of employment when
he benefits himself. Hence no liability of the master. However, it did not overrule Barwick.
Facts differ cuz it’s a criminal act. Shows that you need to look at master’s benefit in
deciding course of employment.
In the above cases, benefit theory was considered, with acts benefitting the master coming as
under “course of employment.”

Lloyd v. Grace Smith & Co. (1912)

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The plaintiff Mrs. Emily Lloyd had 2 cottages worth 540 pounds and 450 pounds secured on
a mortgage. However, dissatisfied by the income, she consulted solicitors (Grace smith &
Co.), who were of high repute and with whom she was acquainted. Here she found the
managing clerk, Sandles who did his work without supervision, who induced her to sell the
cottages and call in the mortgage. He gave her papers and she signed it without reading em or
understanding em, and he fraudulently transferred the property and the mortgage on the
Liverpool property so as to collect the money. Held to be within the course of employment
even though done for his own benefit and not the masters.
The court also held that it is not essential that every act be done for master’s benefit and that
Barwick did not mean this. Barwick didn’t mean that principal is absolved whenever wrong
act is done in furtherance of servant’s motives. Barwick has been misunderstood. To Mrs
Lloyd he was Grace smith and co. the idea of benefit is not a correct approach. The authority
provided is enough.
Sandles could do variety of acts, including acting as a conveyancing clerk and taking
signature on documents.
Thus, the benefit theory used or rather even mentioned in the above 2 cases wasn’t done so
here.

Morris v. C W Martin and Sons (1965)

Chesire v. Bailey overruled. Lloyd upheld.
Plaintiff had to get her coat dry-cleaned. She gave it to a furrier. He gave it to a company
(CW Martin). Servant in CW Martin stole it with dishonest intention. She held CW Martin
vicariously liable. Court interpreted Lloyd and held that she can sue CW Martin directly.
They had a duty of care towards their customer and they breached it. The own benefit theory
of Chesire was overruled.
Question – whether theft is in course of employment. Privity of contract not a hindrance.
Whether servant has done something which he has not authorized to be done, the servant was
entrusted with cleaning the coat. Hence master set ball in motion and he is liable.
● In one sense, course of employment is what all “can” be done.
● Masters job to ensure that servant doesn’t do Y instead of do X.
o The act of ‘theft’ was held to be within the course of employment

o The master was liable; as at the relevant time the property was entrusted to the
servant by his master
when principal has in his charge the goods or belongings of another in such circumstances
that he is under a duty to take all reasonable precautions to protect them from theft or
depredation, then, if he entrusts that duty to a servant or agent, he is answerable for the
manner in which that servant or agent carries out his duty. If the servant or agent is careless
so that, they are stolen by a stranger, the master is liable. So also, if the servant or agent
himself steals them or makes away with them.

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Rooplal v. Union of India (1972) [same dec if govt gave wood]
There is a campfire by jawans on patrolling duty. They used wood of plaintiff in this. Plaintiff
wanted compensation from the Union of India. Question is whether this is within course of
employment.
theft of the property – which was not ‘bailed’ to the master was discussed.
Difference b/w this and CW Martin – goods weren’t bailed to the master and entrusted to the
servant.
Difference b/w this and Lloyd – no checks and balances which could have been put in Lloyd
can’t be put here.
Govt held that the moment they took the logs they were out of course of employment, since
this is for their own benefit.
Held that responsibility of employer to provide the wood to keep jawans in comfort. Further,
held that jawans are in course of employment for 24 hours. Since they stole, shows
government did not take care of them. Hence held vicariously liable.

State Bank of India v. Shyama Devi (1978)

Shyama Devi has bank a/c at SBI, where she felt she should have had about 12000 and her
a/c has only 2000. She says deo Shukla stole the money.
However, he is a neighbor of her and he is good friends with her husband. She gave cheques
to him in personal capacity. However, he put entries and fraudulently deceived her. She asks
court to apply Lloyd in this case to hold SBI liable. However, held that deo was acting as
agent of Shyama, sbi not held liable
Further, bank cannot deposit more than 5000, but deo Shukla took more than 5000.
Distinction b/w Lloyd and Shyama Devi: difference in facts
1. Bank v. Lawyer (way banks work is very different from law firms – you can’t say u
gave incorrect person money in a bank) [shyama knew how banks work and knew
giving money to deo wasn’t in line with SOP, Lloyd didn’t know how soliciting firms
work]
2. Lloyd believed she interacted with Grace Smith & Co. but Shyama Devi believed she
was transacting with Kapil not SBI
3. Lloyd didn’t know how soliciting worked, Bhagwati Prasad was a businessman
4. Llyod went with professional capacity, shyama Devi went in personal capacity.
5. Unarticulated premise – you can’t open floodgates by solving shyama Devi’s problem
after her negligence, want to protect interests of bank.
6. Facts – goods were bailed in Lloyd, here Deo Shukla had no authority at ALL.
7. Lloyd didn’t know Sandles, she knew Deo

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 Negligence:
Negligent acts done during course of employment whether for the master’s benefit or not can
be generally used to hold the master vicariously liable. It means he damages 3rd parties’
property etc.

Williams v. Jones (1885)

Few carpenters were working in a shed. There was a lot of sawdust in the region. The
carpenter lit his pipe negligently, setting the plaintiff’s shed to fire. Defendants said not
course of employment. they said wanting to smoke isn’t a part of the course of employment
with no benefit to the master. Held that this pipe lighting had nothing to do with the course of
employment since it was for his own appeasement and not for master’s benefit, hence master
is not liable. (Benefit theory we can see was applied).
However, Blackburn and Mellor dissented and said its unauthorized mode of doing
authorized act. Can’t stop a servant from doing these things in employment and are
commonplace, we can’t say this isn’t in course of employment, and hence it falls in the
course of employment.

Century Insurance Co. v. North Ireland Road Transport Board (1942)

Driver of a petrol lorry negligently struck a match to light a cigarette and negligently threw it
on the ground, causing damage to the plaintiff’s property. Held to be in the course of
employment even though it was done for the own benefit of the servant and not for the
master. (Dissenting judgment preferred here).
Defendant’s argued Williams can be applied. However, ball in motion question was asked.
Since master has set the ball in motion, he is liable. Further, master could have taken
measures to ensure this wouldn’t have happened by ensuring that they don’t carry such fire
things in a vehicle with flammable products.

Unauthorized delegation of authority:

In these cases, the servant delegates his work or duty to a third party without being authorized
to do so by the master. Generally, master is held liable.
Beard v. London General Omnibus Company (1900)
During the temporary absence of the driver of a conductor of the bus drove (to make it ready
for the next journey) negligently
And caused accident; the plaintiff was injured
Held, the master is not liable – as it is not the duty of the conductor to ‘drive’ hence the act is
outside the course of employment
Held that it isn’t an authorized act also. He did it voluntarily by himself. Unlike Lloyd where
he was authorized to take signatures, conductor wasn’t authorized to drive.

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Ricketts v. Thomas tilling Ltd. (1915)
The conductor of a bus drove negligently and injured the plaintiff
During this incident, the driver of the bus seated next to the conductor and instructed him to
drive
Held, for the negligent behavior of the driver the master is held liable.
Difference between 2 cases – there driver wasn’t present, here he was and actually instructed
the conductor how to drive. He did an authorized act (driving) using an unauthorized mode
(telling conductor how to drive). Hence vicarious liability.

Headmistress, Government Girls… v. Mahalakshmi and another (1999)

An “Aya” of the school told the student of the school to fetch water. She gave her a cycle and
a bucket to fetch the same However, the headmistress was aware of this fact that aya was
doing this to students. However, in the process, she pulled a spring and it came out forcibly,
striking her cornea and blinding her in the right eye. Joint and several liability with school
held liable. The Aya did unauthorized mode (girls had to get) of doing an authorized act
(fetching water for children)
In this case, the school is bound to provide water to the school children, and one of the duties
of the 'Aya' (defendant No. 1) is to bring water to the school children. Instead of her doing
that work, if she authorises some other person to do that, and during the course of that
employment, the person so authorised suffers from any injury, her employer is also
responsible for the same. Unauthorized mode of doing an authorized act.

Specific Prohibition:
Master specifically tells the master not to do somethings. He points out the things which the
servant can do and can’t do.
Limpus v. London General Omnibus Co. (1942)
The driver of an omnibus, seeking to disturb the other omnibus, drives in the path of the other
omnibus. (Circumstances – there were horse carts in the era, but London Omnibus started
these vehicles, with 60% odd of such vehicles belonging to them, very dominant – 1855
started – ran 600 out of 810 in the market till 1912 – declined after that)
The master expressly prohibited the driver from obstructing or racing other omnibuses.
The omnibus which is ahead will get more people on it and hence hurry is to be in the front.
Further, you can have a quick turnaround time. This is what London general Omnibus did by
trying to obstruct the other bus.
Master was held liable. Jury found that this was being done in order to benefit the master.
Hence, specific prohibition was ignored and master was held vicariously liable, considering
that the act was done in furtherance to master’s benefit and not with malice to injure the
driver. (Unauthorized mode of doing an authorized act)

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Twine v. Beans Express Ltd. (1946)
A commercial van run for the postal bank. Transport company contracts with this postal
bank. There was a notice on the dashboard that no unauthorized act. One on ceiling so driver
can also remember.
One day, a man came and pled to the driver to such an extent that u can’t deny the ride. He
said he’ll give, but man is at his own risk, can’t hold any liable. However, accident. Attempt
to hold masters liable. Court didn’t hold master liable.
He was in course of employment for the master, but not in ferrying the person. Further court
held that master can’t do more than what he did. Considering that he had to plead to the
driver, that shows influence of master. Maybe out of pity servant decided, but even said u are
at your own peril. Hence master can’t be liable cuz he can’t do anything more. (Maybe not in
course of employment as done for his own purpose and not his master’s as the other 2).
(Unauthorized act)

Rose v. Plenty and Anr (1976)

Twine became extinct. The driver Plenty employed a 13-year-old boy against the express
prohibition of master in appointing children.
They would go in van; boy would go drop milk and come back. Plenty would pay the boy
from his own salary. No contract b/w master and boy. In the process, he was run over and
injured.
Course of employment only because it was unauthorized mode (telling boy) of doing an
authorized act (delivering milk). Further, master was aware this was a menace.
Need to do it for purpose of employer to be held vicariously liable.
Course of emp in these cases – master’s purpose and benefit. Lord denning said this. If done
for master’s purpose or benefit, it is Vic liability. Done for master’s purposes.
in the present case it seems to me that, the course of Mr. Plenty’s employment was to
distribute the milk, collect the money and to bring back the bottles to the van. He got or
allowed this young boy, Leslie Rose, to do part of that job which was the employer’s
business. It seems to me that, although prohibited, it was conduct which was within the
course of employment and on this ground, I think the judge was in error…
but basically, as I understand it, the employer is made vicariously liable for the tort of his
employee not because the plaintiff is an invitee, nor because the authority possessed by the
servant, but because it is a case in which the employer having put matters into motion, should
be liable if the motion that he has originated leads to another… hence look for master’s
benefit.

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 Vicarious Liability of the State
This concept is also called constitutional torts.
Say someone arrests me – not taken to magistrate within 24 hours, however, habeas corpus
came and I left later. However, I want damages for excess hours. However, I can’t claim
damages under constitutional law, I need an ordinary law.
This liability in ordinary torts is subject to certain privileges under tort (liability against the
state).
It’s a dilemma as to when to hold the state liable as acts are done in bona fide and mala fide
manner.
Two viewpoints
● Hold the state as any other ordinary employer
● Treating the state as a privileged entity with state having some special privileges in
liability
Earlier, king can do no wrong doctrine was there because law and court was the king itself.
However, this progressed and now parliament system came with separation of power
(balance of power). King can do no wrong came under attack.
Absolving the state from liability – sovereign immunity
We need to balance between the two viewpoints.
In UK Crown proceedings act 1947 and Federal Tort Claims act 1946 overruled this king can
do no wrong principle. Apparently, king can do no wrong was never applied in Upanishads
smritis etc where king was first subject of the law.

Timeline of state liability in law:

Government of India act 1858 – sec. 65
Government of India act 1915 – sec. 32
Government of India act 1935 – sec. 176
Constitution of India 1950 – article 300(1). They also added that civil servants doing act in
bona fide manner but injuring someone can’t be used to hold state liable.
There is a need of Protecting the state from liability in order to give it greater leeway to
undertake public functions and responsibilities.

Timeline via cases:

Peninsular and Oriental Steam Navigation Company v. Secretary of State for India in
Council (1861) – in-charge was Peacock CJ [GoI Act has come, hence sovereign]
In sovereign functions – state cannot be held liable
In non-sovereign functions – state can be held liable

15
Facts – the plaintiff is travelling in his horse-driven wagon. There is ship construction at the
dockyard. They were handling iron. However, when it fell down, it made a huge sound.
Because of this, horses went helter-skelter causing damages and injuring the plaintiff as well.
However, no idea as to how the case will be decided. No doubt case is in course of
employment. Straight vicarious liability case.
However, secretary of state held that dockyard belongs to state and hence state needs
immunity because it is sovereign functions.
However, Peacock CJ said that he will hold the state liable if act isn’t non-sovereign.
However, he didn’t define sovereign and non-sovereign function. In the end he held the state
liable because maintaining the dockyard isn’t sovereign function, as a common man could
also perform these functions without delegation of sovereign powers and not just the state can
do it.
The what state can do and cannot do is sovereign came later through interpretation.
Nobin Chunder Dey v. secretary of state for India (1875)
License to sell ganja. He said government allowed me to sell ganja via contract (verbal) and
now they didn’t issue license to him but to someone else. However, he already built
infrastructure.
High Court wasn’t sure if assurance was given to him or no. even if it was, HC said that
issuing license is sovereign acts and hence the state cannot be held liable for the same. Hence,
ruled in favour of secy. of state.
Secretary of state v. Hari Bhanji (1882) – High Court
Judgment of P O was quoted. They said that you can’t say that what state can alone do is
sovereign function. This was challenged and issue was whether state needs protection on a
case-to-case basis. Sovereign and non-sovereign in a different manner. Question was whether
state can be held liable in a purely commercial transaction.
Essentially in Hari Bhanji, can’t look at sovereign and non-sovereign as what state can and
cannot do, but on a case-to-case basis to determine liability, based on facts. If it dilutes power
of state, we need sovereign immunity. Question is whether state deserves immunity.

16
First law commission upheld the Hari Bhanji case as the correct interpretation.
Acts of state – those acts done by state keeping in mind the larger public good.

State of Rajasthan v. Vidyawati (1962)

After pre-colonial era and constitutional framework is put in place. This is the first case of
such character after independence.
Facts – HC judgment (state appeals to supreme court). Collector of Udaipur district has a
driver for his car, who while coming back from maintenance drives over the father of the
respondent (now deceased). Called district collector cuz he collects land revenue in the
district. However, because of the calibre and the managerial and administrative and
magistrate power, now called district commissioner who commissions the various acts in a
district. He mostly done sovereign functions, however very seldom non-sovereign.
Rajasthan HC gave compensation to the mother and the daughter. Hence matter settled.
However, state wanted to know if state can be held liable in such cases and whether its
sovereign acts or not.
Argued revenue collection is sovereign function. Immunity is essential. Also argued that
driving as an act isn’t a sovereign act as a car can be driven and maintained by state and
private person. State was held liable in the case.
Hence, we need a pro-people approach and give compensation. Influenced from Hari Bhanji.
It felt that this decision abolished sovereign and non-sovereign dichotomy and state is liable
in acts of state (cases where state needs protection logically where it does public good).
Sovereign acts were taken as acts which only state could do. Hence this approach
changed to the public good thing.
In this case, state can be treated as an ordinary employer for vicarious liability except in
acts of state. Could have laid it more categorically, but it did not.
Kasturilal v. State of Uttar Pradesh (1965)
Facts – incident wise, Kasturi happened first before Vidyawati. Ralia Ram arrives at Meerut
to sell gold from Amritsar. Arrested in 1947, taken to Kotwali Police station, Gold and silver
was seized by the police from a merchant who was arrested. When he was released, he asked
for his precious metals, and they told him a police constable fled with the gold to Pakistan,
thereby misappropriating it. State not held liable. Time of civil unrest, this constable decides
to go to Pakistan, stealing the 103 tolas of gold. Impossible for Indian government to recover
it. Claimed 11,500 bucks at that time.
Gajendragadkar CJ leading the bench revived the distinction between sovereign and non-
sovereign functions, nullifying the development made in Vidyawati. Heavily criticized. This
was a larger bench, hence re-defining state liability in India. Vidyawati wasn’t a precedent as
it’s a smaller bench. They differentiated facts in the case. They said police has authority to

17
search, seize gold and arrest, and hence deserves immunity because the act was done in the
course of employment. Bad precedential value, will allow carelessness.
Section 165 of UP police regulations relating to procedure for confiscated movable property
were violated. What is expected to be done by police was not done.
Sir’s opinion: decision is correct, but reasoning is wrong. Civil unrest, partition which shook
the minds of our forefathers. Can’t doubt the police in arresting him or giving him his rights.
However, the procedure wasn’t followed. If good seized above 100 Rs. Put in a separate
wooden box with key with SHO of inspector rank. However, accessible to the constable. He
stole others goods also, money and valuables. Said unlucky. However, they could have said
something like civil unrest so not this time, but next time state should be held liable.
Howard v. Jarvis – Australian High Court – Jarvis was criminal who took cigarette in jail.
Howard was sole police officer in this station. He warned him against it. However, criminal
smoked and lit station on fire. However, state not liable because the officer did what he could
and couldn’t have done anything better.
However, following regulations also wouldn’t have made a difference, he could have stolen
the box only. This case actually went from division bench to constitutional bench. Court felt
justice could be done by not awarding compensation to him.
Black shield is of the opinion that – justice must be practical and responsible to the realities
of the situation.
Supreme court had opportunity to re-emphasize the point in Vidyawati. SC could havr
reached the same decision it came to rather than opening the distortion. Could have laid
down the future development of law. Never overruled.
State Of Orissa V Padmalochan Panda (1975)
Facts – lawyer was counselling his client outside court. Police came and lathi charged him
(some student protest was on; he wasn’t a part). He claimed damages.
This made the court look at Vidyawati and Kasturilal. They put a blind and binary application
to Kasturilal since a larger bench. They didn’t read. Don’t need to repeat anything if its in
furtherance in sovereign functions. They used Kasturi Lal and the concept of sovereign in
their own sense and manner. Called a law-and-order situation, hence sovereign function.
This throw of dice they did
i. Sports played by jawans – sovereign
ii. Ferrying for military drills – sovereign
This is a blind application, void in Art. 299 and 300 is there in constitution, hence judges
aimed at justifying situation. But counter-productive.
Basava Patil v. State of Mysore (1977)
Held, where property is stolen and destroyed and no prima facie of due care defence, state
can be held liable.

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On Nov. 1958, a theft in house of appellant. Large number of ornaments stolen in the house.
Went to file FIR. 3 months later, articles were recovered (lots). They prepped panchnama
(what was recovered) and produced before court. Court told police to retain articles till the
procedure is complete (chargesheet etc.). kept in Haveri town police station. Sub-inspector
transferred. New fellow came. He saw all articles intact. Went on 9 days leave. Later, the
court told them to give back to basava. However stolen. Very little was left.
Appellant wants damages to tune of what she lost. Supreme court holds she is entitled to
receive the same. They didn’t even cite Kasturilal. Influenced by Hari Bhanji.
Similarity/Difference:
Kasturilal – property was seized, here it was stolen and lost, police actually recovered it.
Kasturilal – no proper procedure, here proper procedure, no negligence, just lack of due care
and diligence.
It is act of state, but we need to hold them liable, it isn’t colonial era. However, Basava had
very similar facts to Kasturilal. However, peace time, civil unrest etc.

N. Nagendra Rao & co. v. State of Andhra Pradesh

Distinguishes b/w sovereign and acts of state. Actually, referred to Kasturilal and Hari Bhanji
and follows Hari Bhanji.
Facts – appellants deal in fertilizers, food grains and related agriculture products (fertilizer
dealers). There is a vigilance raid on it, confiscated fertilizers and food and other non-
essential commodities. District collector exercised power under sec 6A of ECA to place
fertilizer under custody of assistant agricultural officer so as to distribute. Tehsildar sells the
food and deposit revenue in treasury.
Every facet of EC under ECA, provided they are essential commodities. This empowers the
executive authorities concerned to seize those hoarding EC, creating artificial demand under
it. All perishable commodities. However, the charges take time to be proved, till that time if
you keep all things will be rendered useless.

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Appellants were charged; however, they didn’t make proper entries, hence that’s the issue.
Court asked to return the goods. They gave the quality and quantity which was deteriorated to
him. He sued the state for loss. Trial court allowed appeal; HC denied appeal.
State argued Kasturilal not Basava as it had no authority in the case and was bound to follow
kasturi. Further, this was a sovereign function argued by state. Appellants said we have loss
by their apathy, can’t use sovereign immunity.
SC referred to queen can do no wrong. He says if queen is shooting PM, she claims sovereign
immunity, will claim the maxim. Dacey says no. the maxim means that they are not
authorized to do any wrong act, hence no sovereign immunity. Refers to manu, no letting
king go scot-free. He also comes under law. Even in muslim law.
They quoted hari bhanji as well. Acts of state – essentially means we need a stronger state,
whether state needs protection, whether state will be discouraged or not, except where state
deserves protection, hold state liable.

This case side-lined Kasturi Lal further.

Saheli v. Commissioner of Police (1990)

Custodial torture and beating. Police are doing what is expected of them and what they are
empowered to do. Police are doing it excessively, abusing the power, going out of the course

20
of employment, hence state feels that they shouldn’t be held liable. Your taking tax payers
money and giving it. However, Kasturi Lal wasn’t applied. Looked at it from PoV of
responsibility and accountability. Court says that state is so powerful it can bind the Judiciary
only, what protection do they need. Are you behaving responsibly, accountability? If you and
servants are working responsible, no liability.
The Chairman, Railway Board & others v. Mrs. Chandrima Das and others (2008)
Bangladeshi woman was raped in yatri nivas of station. Her name is Hanifa Khatoon.
Whether sovereign, whether foreign nationals have the rights etc. held liable, state power
should be used for the public good not for such rapes etc.
State holding employee personally liable: first seen in Capt. Satish Sharma. Cuz drying the
exchequer, so as to use the money for public good.
Now, its accountability, protection of rights as in Nilabati, Govindbhai Jhakubhai etc.

Negligence
Dual meaning of negligence
i. treating it as a specific tort (leaving scissor in stomach)
ii. mode of committing other torts – trespass, defamation, nuisance. (Moving into
someone else’s territory – tort is trespass, just done negligently.)
Take rooplal or bhimsingh, they do what they had to do negligently. (Rooplal – no wood to
jawans), (Bhim Singh – investigated and stuff, but arrested and not produced before
magistrate within particular prescribed time), trespass (entering someone else’s land without
caring – negligent), act risks society, hence its also independent tort, and defendant should be
held liable.

Essentials of law:
1. there should be a duty of care towards the plaintiff by the defendant.
2. The defendant breached this duty.
3. The plaintiff suffered damage as a result of this thereof.
Duty of care:
The duty of care must be a legal duty of care (not a mere moral or social duty) which must be
looked at a case-to-case basis. Lord Atkin has the neighbour principle which –
you must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbor.
(Neighbors are) persons 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.
Donoghue v. Stevenson (1932)

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The plaintiff’s friend bought her a ginger beer in an opaque bottle. When she poured it, there
was a decomposed snail which fell out of it. She alleged that she suffered in her health due to
the consumption of this spurious drink, and mental health damage also. Detected for
gastroenteritis. Wanted to go to court. Ultimately the manufacturer was held liable for the
same.
Manufacturer wasn’t exactly in picture here. She was repeatedly told not to go, no privity,
case weak, but she ultimately won.
Langridge v. Levy (1837)
Man purchases a gun intended to be used by the son. The gun explodes in son’s hand,
explodes and was severely injured. Son went against manufacturer and retailer. Gun
exploding injuring the user isn’t reasonable. Hence, I want compensation. Court said son
didn’t buy the gun, hence no privity of contract and hence suit is not maintainable. However,
this approach was rested a long time ago.
However, appeal court said anyway to be used by son. Vendor knew it meant to be used for
son. Court said pay compensation. However, point is if seller didn’t know about whether son
didn’t know gun is being used by son, we don’t know what would’ve happened, nothing is
mentioned about it.

Thomas v. Winchester (1852)

Delladona (poison) sold as a medicine (dandelion). There is a wholesaler and retailer.
Wholesaler sells poison as a medicine to retailer. Pure negligence on part of wholesaler.
Retailer believing it to be medicine gives to consumer, consumer was severely injured.
Customer goes against wholesaler. Wholesaler says no contract, he is a stranger. Don’t
entertain him.
Court said doesn’t matter, you sold poison, you know it was meant to be consumed, whether
X and Y and Z. doesn’t require common sense to know if I manufacture something, I know
someone will consume it. Hence reasonable care not present and held liable. Further, held
privity of contract in the sense that retailer is an agent of manufacturer, hence liable.
Difference in 2 cases – needed to establish privity in Langridge, not in Thomas, said meant to
be used since its manufactured. Court was shaking, were removing privity, but tried to imply
it. This was when industrial revolution was happening.
However, when Donoghue happened, wasn’t really industrial revolution, lot of water flowing
down, could push the fallacy of contract aside, tortious liability to be used. Manufacturer to
be held liable.
However, when Donoghue, some judges were still looking at privity of contract. However, if
u make something intended to be used by others, you will be liable if someone else uses it.
This was crystallized in Donoghue, culminated here.

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Ratio of Donoghue – the word sell can mean produce as well.

till Now, judges believed we need privity of contract, however, here held we don’t need
contract perspective, because tortious liability is independent of contract privity. Only
attempts till now, consolidation here.

Method of study –
1. Who is a reasonable man and what is a duty of care?
2. Special rules (contributory rules, res ipsa loquitor)
3. Understand sphere of contemplation and proximate cause

Reasonable man
A prudent man, I should do everything reasonable.
The reasonable man depends on the circumstances. It’s a man of average intelligence,
ordinary due care and skill, it’s a hypothetical person. By observing ordinary, standard of
care parameter can be drawn and we can see what reasonable man will do, then see what the
defendant will do.
Reasonable doctor is average doctor, not a highly-skilled nor a low-skilled doctor, but an
average one picked from the pool.
Negligence is the omission which the defendant makes, such that a reasonable man under the
same circumstances, won’t make the same omissions (Blythe v Birmingham Waterworks Co).
The consequences as a result must be within reasonable foresight. Called the area of
reasonable foresight for a reasonable man.

Infants –
They must be treated as a separate category who cannot be held liable or contributing to
contributory negligence. This is because we cannot expect a child (infant) to take reasonable
care and precautions.
Laxman Balakrishnan Joshi v. Trimbak Bapu Godbole case

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Boy named Ananda. Incident took place in 6 may 1953, he was cycling with friends, he was
20 years, in Ratnagiri district, he meets accident, left leg gets femur damage. There were
fewer medical facilities in rural areas.
Boy’s father is also a doc, but wasn’t there, some city. Risbud, doctor attends him. 8th may
1953, Risbud advises them to take him to Pune, they went there, reached same day. Was
treated there. May 9, surgery was conducted. Boy’s leg was cast in splint and shifted to
assigned room. By 9 p.m. declared dead.
Alleged medical negligence. He was healthy boy, docs killed them. However, some
complications arose by medicine. Defendant doctors said phobia came and that’s why we
died. Fat embolism was caused by phobia. Phobia cuz accident on 6th, treating on 9th, further
he was transported in excruciating pain. However, the boy wasn’t under anaesthesia, but was
under Morphine, and hence pain. Hence, medical negligence, cuz he could have got
anaesthesia, a parameter they fell short of in their due care. Shows how court can decide, and
a reasonable doc would’ve given anaesthesia.
Chain of Causation – in A.H Khodwa, a sterilization procedure, minor surgery, severe
abdominal pain. He suspects operation was wrong, mop was removed, and she died. While
this carried over several months, however, the death was because of the first faulty operation.
Hence medical negligence of first doctor
Persons with Infirmity:
Daly v. Liverpool Corporation (1939)
In a case where a 67-year-old woman was tried for contributory negligence in crossing the
road, the courts held that we need to consider a woman of her age in considering a reasonable
person, not a hypothetical person.
However, only the physical (visible) characteristics of a person should be considered in
deciding our reasonable man, not mental characteristics, which cannot be seen, making
precaution taking impossible.
Intelligent – The intelligence of the person must be of an average and normal intelligence
person. Those who’s intelligence is superior can’t be considered as a reasonable man.
Knowledge – a person is expected to know the things an ordinary adult must know from their
experience.
If I am attempting to cross the road, I should know what a reasonable man would have
knowledge about it. Even if I don’t, I may be required to get special knowledge from
someone else. Landlord must ask an engineer about lift. Actual knowledge of circumstances
by defendant will increase the standard of care (he’ll need to show he proceeded with great
caution).
Skill – a doctor needs to possess all skills of a doctor and no one else. Person’s skill needs to
be according to the skill of that category of people.
Philips v. William Whitely Ltd. (1938)

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Where a plaintiff had her ears pierced by a jeweler in order to wear ear-rings and
subsequently contracted a disease that might have been avoided had the work been done with
normal medical skill, the jeweler was required only to show the skill of a jeweler doing such
work, not that of a doctor.
Homeopathic doctor if administers ayurvedic medicine, can’t say he took due care as he did
not possess the requisite skills as an ayurvedic practitioner. Hence, reasonable doctor here is a
homeopathic doctor who wouldn’t administer the Ayurveda.
Circumstances of the plaintiff:
Actual knowledge on part of the defendant – look at plaintiff’s condition, whether pregnant,
blind in one eye.
Haley v. London Electricity Board (1965)
They put a blinking red-light with a danger sign in a place with a pit, might seem reasonable.
However, look at the circumstances of the plaintiff, a blind eye might fall into the pit or so
may a kid. So, we need to look at the circumstance of plaintiff in determining a reasonable
man.
General Community practices
The reasonable man must be based on the general practices of the community. Defendants
will be supported if they prove that they followed the normal practice of such a community
A specialist who failed to diagnose the complaint of the plaintiff was held not to have been
negligent when he used the normal methods of British medical specialists, although the use of
an instrument usually employed in the US might have resulted in a correct diagnosis
Till now we did reasonable man.
Construction of a reasonable man:
1. Freeze the facts by simulating them from the current situation. Then create a
reasonable man and compare behaviour using knowledge skill and intelligence.

Special rules:
Question of law v. fact
Earlier jury trial, they answer question of facts. Judge answers question of law. Jury
represents different aspects of life. Based on jury’s verdict, the judge reaches a suitable
decision.
Example – question of law (Majority age is what age?). whether there is a duty of care,
standard of care, remoteness etc.
Question of fact (whether he is a major as per 2 conflicting documents).
Now, both are assessed by the judge.

Res Ipsa Loquitor (Facts speak for themselves)

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Principle came in 1865 in a case Scott v. London and St. Katherine Docks co.
In the case, a customs officer is inspecting a particular warehouse, expecting something
illegal in this warehouse. He recollects that the moment he entered the warehouse, some bags
of sugar fell on his head. He regained consciousness in the hospital. Wanted compensation
from the defendants. Held in favour of defendants, as no evidence of negligence by plaintiff
against defendant. Appeal made.
Look from judge point – he is in hospital; he was injured in warehouse. However, we don’t
have proof because he doesn’t remember what happened. We know some facts, but we don’t
know if defendant was negligent in this case or not, and whether defendant was diligent in
maintaining his premises. Thus, shift burden of proof to defendant to show he wasn’t liable.
This is the res ipsa loquitor. But for defendants’ negligence, it wouldn’t have happened.
You need to show “at least” some negligence or facts point to it. But for defendant wouldn’t
have happened. Beyond that, we can use res ipsa loquitur.

Can apply in surgery cases (before surgery I was fine), after I was sick. However, points to
something during surgery, but we can’t conclusively say anything. Hence, res ipsa.
Trick – if facts speak for themselves, use res ipsa and then prove the essentials etc of it.

Lloyde v. West Midlands Gas Board (1971)

Said res ipsa was not a doctrine, but a common-sense approach to describe the assessment of
evidence in certain cases and circumstances. It merely shifts burden of proof.
Laid down the test as well –
1. It is not possible for him to prove precisely what was the relevant act or omission
which set in train the events leading to the accident; and
2. On the evidence as it stands at the relevant time it is more likely than not that the
effective cause of the accident was some act or omission of the defendant or of
someone for whom the defendant is responsible, which act or omission
constitutes a failure to take proper care for the plaintiff’s safety” essentially the
same test.
Essentials:

26
 1. The doctrine is dependent on the absence of explanation
2. The instrumentality (means to cause the harm – the pump motor, the defective bus)
causing the act must be within the exclusive control of the defendant
3. The harm is such that it would not happen if due care is taken (but for the negligence
of the defendant, it would not have happened).

Alka v. Union of India (1993)

The plaintiff, girl aged 6 lost her two fingers when she inserted her hand into the belt of an
unattended pump-set which was installed in Shakti Nagar, to ensure water supply to the
residents (by the defendants);
The pump motor was running on electric power, within the reach of children and was without
any attendants;
Presumption of negligence on the part of defendants was raised and were held liable to pay
compensation of Rs.1,50,000.

Mrs. Aparna Dutta v. Apollo Hospital Enterprises Ltd. (2000)

The plaintiff was subjected to operation (in the defendant’s hospital) for removal of her
uterus, as she was diagnosed to have cyst in one of her ovaries
She had to, unfortunately, undergo another surgery to get the abdominal pack removed which
was left by the first surgeon;
Leaving foreign matter in the body during the operation was held to be a case of res ipsa
loquitur – and plaintiff was compensated to the extent of Rs.5,80,000

A H Khodwa v. State of Maharashtra (1996)

The plaintiff patient was killed due to negligence of the doctors.
She underwent sterilization operation after her childbirth. A mop was left inside the
abdomen of the patient by the doctor who performed the operation.
This resulted into medical complication and ultimately proved fatal.
Presumption of negligence by the doctor performing the operation was raised and the State
(which was running the hospital) was held liable.

Karnataka State Road Transport Corporation v Krishnan (1981)

In an event of road accident – two buses brushed each other in such a way that left hands of
two passengers traveling in one of these buses were cut off below their shoulder joint
Held, the accident itself speaks volumes about the part of drivers of both the vehicles

27
As there was no satisfactory explanation possible, res ipsa loquitur was applied and
defendants were held liable.

Shyam Sunder v. State of Rajasthan (1974)

The engine of a truck got on fire, wherein the truck had traveled hardly 4 miles;
One of the travelers in the truck (Mr. Naveneetlal) jumped out of the truck to save himself
and hit by a stone and died;
It was found out that the truck took 9 hours to cover a distance of 70 miles the previous day;
Res ipsa loquitur was applied in this case. The instrumentality causing the act (faulty truck)
was in defendant’s control, plaintiff couldn’t have done jackshit.

Res Ipsa doesn’t determine liability, just puts burden of proof on the defendant. However,
once imposed, judges seldom take defendant’s defenses that he isn’t liable and
conventionally defendant is held liable.
Application of maxim denied:
Here there were multiple plausible causes. Hence no res ipsa loquitur. The But-for test needs
to be satisfied in such cases.
Wakelin v. London and Southwestern railway Company (1886)
The defendant’s railway line crossed the footpath. There is a hand gate, when the train
crosses, these hands come down telling public not to cross. However, at night, Wakelin was
on this public crossing. The driver forced to blow the whistle, argued if he blew, then the
accident could have been avoided. We don’t have evidence if he slowed down as well.
The lawyers wanted to shift burden of proof to defendant. Court said there might be
negligence of train driver, however, plaintiff’s death can’t be related to this completely. He
says other explanations possible that the man may wanted to have committed suicide. Thus,
there are many options, and but for negligence of defendant, not liable. No concrete evidence
was present to prove that the plaintiff would not have been injured if the whistle would have
been blown Hence not a good application for res ipsa loquitor. There is negligence no doubt,
however, cannot entirely blame death on defendant. Hence no res ipsa loquitor. The suicide
isn’t a stretch, merely shows multiple plausible answers.

K. Shobha v Dr. Raj Kumari Unithan (1999)

The plaintiff was treated for non-conception by a gynecologist (but she had one kid aged 8
years already)
She was advised test tubing to remove suspected obstruction in the fallopian tube
With her consent needful treatment was done, wherein blowing of air into her fallopian tube
through controlled pressure was performed
But there was post treatment infection crept in and made her conception impossible for future

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Held a case for no application of res ipsa loquitur
The lady was 35 years old and wanted one more child. The uterus was removed and she was
rendered not able to procreate. However, just because infection, doesn’t mean wrong
treatment. Further thus, can’t infer negligence from the mere facts alone. There are multiple
reasons for the infection, not feasible to go to res ipsa.

Syad Akbar v. State of Karnataka (1979)

In a bus accident a girl aged 4 years got killed;
During the relevant time the girl was attempting to cross the road from left to right;
The width of road was just 12 feet and either side of the road there were deep ditches – which
made the driver to swerve the bus which hit the boy;
Held that, the facts of width of the road, ditches etc., and the child’s sudden entry on to the
road, do not lead a clear and unambiguous inference of negligence on the part of the driver, at
the best it could be assumed as driver’s misjudgment (defendants were held not liable).
Driver was driving at a reasonable speed, confirmed. But for test wasn’t satisfied. Entire
thing wasn’t his fault. Fault of parents of child also. RIL inapplicable to law of crimes.
Lower courts all convicted. Question was can res ipsa loquitur be applied in criminal cases. Is
there anything to show that rash and negligent driving to show liability, sc said Res Ipsa was
used and hence the lower courts couldn’t come to a conclusion.
The mishap didn’t fully happen due to the negligence of the defendant Syad Akbar.
But for test not fully related, can’t really say he was very negligent (road etc). he even
honked.

Res ipsa is a means towards negligence, not mutally exclusive. You ultimately decide
negligence on basis of reasonable man.
 It is not sufficient if there has been negligent behavior on the part of the defendant. There
must be specific injury caused to the appellant, which was caused due to the defendant’s
negligent behavior. This injury must be reasonably foreseeable and there must be proximity
between the injury and the negligent act. The number of compensatory damages depends on
the facts of the case and the degree of negligence of the defendant.
Can be applied only if but for test is satisfied. If cause is unknown, cannot be applied.
EVENT CAUSING THE ACCIDENT MUST BE IN DEFENDANT’S EXCLUSIVE
CONTROL.

Contributory Negligence:
Earlier, if contributory negligence could be proved on plaintiff, it was complete defence to
the defendant. However, after 1945, the Law reforms (contributory negligence) act, just
subtracts damages to the tune of negligence (at discretion of court). You apply contributory

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negligence, driver is rash, plaintiff crosses wrong place. Till 1945, no one liable go home.
After 1945, damages reduced on a pro-rata basis.
Essentials for contributory negligence:
1. That the injury of which the plaintiff complains results from that particular
risk to which the negligence of the plaintiff exposed him;
2. That the negligence of the plaintiff contributed to his injury;
3. That there was fault or negligence on the part of the plaintiff.
Contributory negligence – negligence on both parties. How are you going to decide the case?

Butterfield v. Forrester (1807)

The defendant wrongfully obstructed a highway by putting pole across it;
The plaintiff was riding violently in the twilight on the road collided against the pole and was
thrown from his horse and was injured.
It was held that, the Plaintiff had no cause of action – as he himself was negligent and could
have avoided the mishap.

Between 1807 to 1945, they realized this isn’t an exact defense. Hence, they evolved a ‘Last
opportunity rule’ to avoid mishap. The person who could have avoided the negligent act at
the last impact by taking ordinary care could be held negligent in these cases. However,
judges had difficulty in applying this.

Davis v. Mann (1882)

Plaintiff fettered the fore-feet of his donkey and left it in a narrow highway
The defendant was driving his wagon driven by horses too fast that it negligently ran over
and killed the donkey
Held the defendant is liable for defendant had the last opportunity of avoiding the accident.
He said both parties are negligent. But who had the last opportunity? The defendant did.
Easily could have slowed down the vehicle and protected the animal. Hence, liable.
a man might justify the driving over goods left on a public highway or even over a man lying
asleep there, or purposely running against a carriage going on the wrong side of the road –
court said.
British Columbia Electric co v. Loach (1916)
The driver of a wagon (in which the deceased was seated) negligently brought the wagon on
the level crossing of the defendant’s tramline;

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A tram car belonging to the defendants moved with great speed (and with defective breaks)
collided with the wagon;
The defendants pleaded the defense of ‘contributory negligence’, which was not allowed –
and defendants were held liable
This is constructive last opportunity – discretion of the judge in deciding who is liable,
however, this approach has created a lot of confusion. Last opp rule is a farce.
To end elimination, Law Reforms (Contributory Negligence) Act was brought in.
Where any person suffers damage as the result partly of his own fault and partly of the fault
of any other person or persons, a 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
thereof shall be reduced to such extent as the court thinks just and equitable having regard to
the claimant’s share in the responsibility for damage. (Section 1(1)). This is England, but
Courts have allowed this as if we have our own resembling law in the same respect.

Klaus Mittlebachert v. East India Hotels Ltd. (1997)

The plaintiff, co-pilot in Lufthansa Airlines checked into a hotel run by defendants and got
severely injured while diving into the swimming pool
The incident took place on August 13, 1972 and this injury made him paralyzed for 13 years
and death after that;
The ‘contributory negligence’ was used as defence – but never allowed – and the plaintiff
was compensated
When he tried to dive in lay-off period (time other than driving hours), he is a guest in hotel,
he dives into pool. He is paralyzed. However, this is because depth of pool is low and less
maintenance. Further, they didn’t put warning against diving. Further, the defendants say that
they hired people to construct, not their fault and also that, Klaus isn’t paying the bill, his
master is. Further, pool according to the prevailing circumstances at the time was built, and
they can’t demolish and shit. They argued contributory as Klaus was drunk at the time.
However, not allowed by the court.
Court said defendants said contributory negligence. However, he ordered 2 bottles of beer, if
he consumed both, but we can’t say he was inebriated. Further, he may not have consumed
full. This doesn’t indicate he took an irregulated plunge.

Agya Kaur v. Pepsu Road Transport Corporation (1980)

The defence of contributory negligence was denied (not even considered).
A rickshaw being driven on the correct side of the road was hit by a bus coming on the wrong
side.
The rickshaw puller was carrying three adults and a child (overloaded).

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Held that there is no contributory negligence on the part of the rickshaw puller.
Since the driver of bus exercised due care, not fault of auto. Even if auto had no people,
accident was inevitable and hence, not liable. Can also attribute res ipsa loquitor.

Doctrine of Alternative Danger: in these cases, the plaintiff is justified in taking some risky
decisions because of the position he has been placed in by the defendant. He may do this to
save his person and property.
Jones v. Boyce (1816)
The Plaintiff was passenger in defendant’s rashly driven coach;
With a view to save himself from the danger created by the defendant, he jumped off the
coach and broke his leg;
Had he not taken that decision nothing would have happened to the Plaintiff
Held the plaintiff had acted reasonably under the circumstances and he was entitled to
recover. Can’t attribute contributory negligence.
to enable the plaintiff to sustain the action, it is not necessary that he should have been
thrown off the coach, it is sufficient if he was placed by the misconduct of the defendant in
such a situation as obliged him to adopt the alternative of a dangerous leap or to remain at
certain peril; if that position was occasioned by the default of the defendant, the action may
be supported.

Shyam Sunder v State of Rajasthan (1974)

A truck belonging to Rajasthan state caught fire hardly after it had covered a distance of only
four miles on a particular day
Mr. Navneetlal, one of the occupants jumped out to save himself from the fire and was struck
against a stone lying by the road side and died instantaneously
The defendants were held liable for the same
The state of contributory negligence now is preponderance of probabilities, which does a pro-
rata damage.

Strict and Absolute Liability

Strict liability – enhances chances of defendant being held liable compared to other modes of
imposing liability.

Also called rule of Rylands v. Fletcher (landmark judgment in English courts)

Strict liability is imposed when -

● No negligence
● No intent to cause harm
● Even positive efforts to avert harm by defendants

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As long as you are reasonable in behavior, you cannot be held liable in negligence (reasonable man
behavior). Further, as a defendant, if you go beyond reasonable man’s compliance, in such instances
you can be held liable in strict liability.

When a defendant is produced in a court of law, a defendant generally has defenses available
(hypothetically say 10), however in strict liability, your use is restricted to 2/3 general defenses
among these 10.

Rylands v. Fletcher [1868] UKHL 1

Plaintiff owned and operated mines adjacent to the defendant who had a pond (artificial). The latter
caused a mine-shift collapse, resulting in a flood and a loss of 937 pounds to the plaintiff in the day.
Alleged due to negligence of the defendant.

The pond was a reservoir which he needed as he was a mill owner.

Rylands was reservoir man, fletcher was the mine owner. However, the decision was in favour of
plaintiff (Fletcher).

Blackburn J. laid down the rule in the case

Natural means reasonable consequence of its escape – (Ex. Nuclear reactor 5 km from me – I have
water stored in a gigantic tank. Flooding reaches the reactor and BOOM – essentially if it escapes at
my peril, I am answerable for the escape). This isn’t the remote possibilities but foreseeable ones.

First Industrial revolution – up to 1840 – factory system of production. Every lawyer and judge were
puzzled over what was the scenario, considering new challenges. Hence new rules and innovation
was the need of the hour.

However, in such an unnatural use of land, there must be a larger liability beyond reasonable man.
Hence rule of Rylands.

Post Rylands situation:

Ryland appealed the judgement to UKHL. Here, Blackburn J position was affirmed and one additional
requirement called non-natural use of land was added to this.

Hence the requirements:

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 1. Dangerous thing brought on the land – water in Rylands, later applied to gas, sewage,
electricity, vibrations, sewage, explosives, noxious fumes, rusty wire etc.

2. The dangerous thing must escape – (escape outside area of control of defendant)

3. Non-natural use of land – increased danger to public will be there, not a mere ordinary use
of land for general benefit.

However, we don’t know what is non-natural use of land. In some cases, these 3 things were held
non-natural and sometimes otherwise.

Defenses

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Impact of this strict liability rule on other jurisdictions:

Scotland (in the UK) – Principle not followed, not worth continuing the rule because it lacks rationale
and its extraordinarily harsh, and without any fault of his own he is being held liable. Principle not
worth following.

Nuisance – indirect interference into someone’s right of enjoyment over his/her property.

Further we can see in the Australian case, principle of strict liability is rejected, principle doesn’t
have a great academic value since it has not grown with a scientific basis, Rylands rejected.

USA had a mixed response as seen here in the image.

Strict liability in India –

Two arms of development.

where courts have accepted the rule

Madhya Pradesh electricity board v. Shailkumar Smt. Kaushnuma Begum & ors v. The New India
and Anr (2002) Assurance Co. Ltd.

one eventful day, a man who used to commute if you look at section 140 of MVA, it is no-fault
b/w workplace and home on bicycle did not liability because strict liability is no longer strict
notice an electric live wire lying on the road. liability.
When he bicycled on the wire, the wire
twitches and he come in contact with it and he In the no fault the compensation amount
got killed. Survivor of him (Joginder Singh) is fixed and is payable even if any one of
brought action against the electricity board. the exceptions to the Rule can be applied.
Indicates negligence on their part and strict
strict has so many exceptions, often reduces
liability since live wire is inherently dangerous
damage.

MPED argued that not their fault, but a third

party who wanted to siphon off electricity
illegally to his premises. Hence, they weren’t
aware of what was happening and the third
party didn’t siphon correctly also. Hence not
their fault, so no strict liability for us but for

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 them.

supreme court gives relief to the plaintiff,

strictly defendant is liable. If the defendant
took reasonable precautions, he cannot be held
negligent, but however, reasonable precautions
or due care is irrespective in the case of strict
liability. Hence MPED liable

Absolute Liability – second arm of development

Realized that the rule of Rylands is ineffective in cases of industries.

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The principle of absolutely liability is ONLY in inherently dangerous activities. If this causes loss by
means of escape or otherwise, it is absolute liability. There is absolutely no defense available to you
in these cases. Strict liability is potentially dangerous substances. The scope is so wide that they
didn’t know where to apply negligence, nuisance and strict liability. Hence the introduction of non-
natural use of land, which also did not help the courts. They also added the three other defenses.
India didn’t want this. Hence absolute liability in few chosen instances, which are devastating
enough, of greater magnitude. Hence, a restricted scope of absolute liability.

This is a major reaction of Indian courts, not present elsewhere in other jurisdictions.

(Watch recordings for this).

The industries were pissed with M. C. Mehta. Government said we’ll label what are hazardous
industries and what aren’t. those which are will take public liability insurance.

However, this vitiates the purpose for absolute liability, if u read the act. However, in case of a new
Bhopal Tragedy, the insurance company will go down the drain. To limit the liability, they further
amended public insurance act to say let absolute liability be handled by SC. However, to provide
relied to victims, u appeal to DM or District commissioner, on grounds on immediate compensation.
DC is to verify facts and ask insurance company to provide a fixed some fixed sum of money.

No-Fault liability – not coinage of court, made by legislature (sec. 140, Motor vehicles act). Injury to
third party out of accident, insurance money has to be used to compensate. Don’t differentiate b/w
these 3, lost in jargons.

The Public Liability Insurance Act, 1991 aims at providing for public liability insurance for
the purpose of providing immediate relief to the persons affected by accident occurring while
handling any hazardous substance for matters connected therewith or incidental thereto.

T.C Balakrishnan Menon v. T.R. Subramaniam – bursting crackers is non-natural use of land.
Acts of state – bona fide/ mala fide

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