Course Curriculum - Law of Torts

Ratanlal and Dheerajlal – primary reference textbook

a. Area of Torts
b. Motor Vehicles Act
c. Consumer Protection Act
We will focus on theoretical concepts -
Illustration I
Private school in Rajasthan – Math class -5th standard – makes mistake – teacher slaps the
student – bruised – father goes to the school – picks the knife – wife gets in the way – injured
Three things which tort relates and connects are –
a. Relationship between parties
b. Liability
c. Justification
Illustration II
Jaipur to Jodhpur – private taxi – heavy fog – less traffic – deserted place on highway – car
struck a tree – car is crushed – no survivors – no witnesses – whether it was an accident or the
driver lost control?
a. Whether the company would be vicariously liable or not for the death of the passengers?
b. Compensation scheme of the passengers and driver?
c. What role would the fog play in the given scenario?
CPA – it takes a liberal stance on the consumer being responsible
Very important question in any consumer case is –
a. Whether the person claiming injury is in fact a consumer?
b. Whether the purpose of his use was commercial or personal?
c. Liability of the consumer himself in being aware about the goods or services – Caveat
Emptor or Caveat Venditor?
d. Defect and Deficiency?

Lecture – 11th January

1. Law and Society cannot be separated in the sense of organization – to resort to stability
State seeks to impose stability on its subjects – using civil legal texts and laws

2. Law also has to take into account different individuals and their preferences – to resort to
change
Can we have universal postulates to determine if someone’s rights and privileges are violated?
Illustration – Brand Adidas; Duplicate Abibas is operating in commercial streets of a city-
Every act of duplication of Adidas by Abibas is a violation of its rights?
a. We cannot label all specific circumstances all in one bracket – we can have universal
postulates but cannot hold all violations to be only specific to these postulates.
System of Civil Law ensures Fairness and Reasonability – promotes Dynamism
Common Law:
a. Legal or Moral Codes which have to be dynamic in nature – undertake subjectivity

Homework – Read it - A SPECULATIVE INQUIRY INTO THE NATURE OF TORTS By

MAX RADIN
What is Tort?
Should we give a universal definition or should there be compartmentalisation of tort into
different categories?
Universal definition would restrict the limits – it would include within it a lot of actions which
do not qualify as a tort – it could lead to uncredible inclusions
Tort can be understood in a system of compartmentalisation – where most of the cases would
have to satisfy the essentials and fit into respective compartments – it can also be dynamic and
create a new compartment altogether as and when it finds such cases
Homework – Definitions of the tort – find which definition explains tort the best

Lecture- 12th Jan

Speculative inquiry article—basics of common law//nature of torts

Tortious conduct, literal meaning, twisted conduct against an established norm, which is present
to protect certain interests, these interests translate to legal rights, correlative rights, when there
is breach of duty, there arises a claim.
Liquidated damages are calculated on a daily or weekly basis. Unliquidated damages are
damages that are payable for a breach, the exact amount of which has not been pre-agreed. The
sum to be paid as compensation is said to be 'at large' and is determined after the breach occurs,
by a Court.

Difference between ‘damage’ and ‘damages’

All interests of a person are not protected interests, where the society protects certain interests
and it leads to legal rights and a followed correlative i.e., a legal duty. Public rights—right
against nuisance, a community would want a peace manner of stay in their daily course of life
and anything which intrudes with this can be considered a violation eg- public work//road work
in a locality//noise and dust Private individual can claim violation through the public right where
he has faced a specific/peculiar/substantial damage Eg- specific health conditions of an
individual being worsened due to construction activity

Wrongful Act: The act complained of should, under the circumstances, be legally wrongful as
regards the party complaining: that is, it must prejudicially affect him in some legal right. Merely
harming his interest is not enough Protected Interests->Legal Rights->Corresponding Legal
Duties Private Rights: Rights which belong to a particular person to the exclusion of the world
at large. For example: - Right of reputation - Right of bodily safety and freedom - Right of
property Public Rights: Rights which belong in common to members of the State generally. For a
private individual to claim legal damage through this route would require a special, peculiar and
substantial damage in addition to injury to public. EG: Consider a locality where some sort of
road work is going on. The road work may cause a lot of noise and other problems to the society
at large. A private individual may claim violation to this public right by claiming a specific
damage done to him on account of the wrongful act.

UNLIQUIDATED DAMAGES

Cant be restituted for public rights,To restitute in a whole, compensation is notional- notional
restitution The aim is to put you back in position as to that the incident never happened in the
first place

Tortious act v contracts distinction- Eg- doctor operating on son due to contract bw father and
doctor Where does the mistake and remedy lie?

Can third parties to a contract claim damage in form of beneficiaries

24 Jan

Doctrine of Privity seems to restrict the rights one can claim (previous discussion)

Third-party beneficiaries are not entitled to enforce claims for tortious liability owing to doctrine
of privity however an exception has been created for consumer protection act to hold producers
liable

Illustration: own a supermarket in a neighbourhood where he was main supplier, new market
opens, u suffer loss, there is a loss but no claim

Not all interests are protected, not all interests translate to legal rights. The act of interest has to
be a wrongful act. It’s not a wrongful act bc your interest is affected but it's a wrongful act bc it's
against your legal rights not all interests.

Social interests competing with private interests- in the utilitarian sense social interests takes
over

DAMNUM SINE INJURIA

Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages in
which there is no infringement of any legal right which are vested with the plaintiff. ... It is an
implied principle in law that there are no remedies for any moral wrongs, unless and until any
legal right has been infringed.

INJURIA SINE DAMNUM

Injuria Sine Damnum refers to legal injury caused to the plaintiff without any physical injury,
whereas Damnum Sine Injuria refers to a physical injury suffered by the plaintiff, but no damage
is caused to the legal rights as there is no violation of them.

A wrongful act is not always overt. An act not done is also an act, therefore it also includes
wrongful omission

Legal right- correlative duty, raises a question of whether there exists some form of absolute
right

Absolute Remedy and Right

UBI JUS IBI REMEDIUM

When we say where there is a right there is a remedy- this is not an absolute statement it is very
subjective in nature and is affected by external factors like social interest and many other things

Eg- no absolute right to bodily integrity exists

In some instances remedy is absolute, a system of liability made for policy concerns of the state:
ABSOLUTE LIABILITY, an extreme system has to be made to prevent large public wrongs, a
strict standard had to be made

Illustration: Rescue situation, body of water drowning boat capsized struggling to get out, you
see this person idk how to swim chances are if I try to rescue them I might die myself

For such a person does the state create a legal duty to save others? No, yes there is a ethical
dilemma but the state doesn’t enforce a duty on you even if you knew how to swim

Illustration 2: if the stranger was replaced by a child and the person walking by is the father, is
there a different legal duty?

Expectation to be saved- right to life translates to a duty to be protected by a legal guardian, there
exists a special relationship because children are under care of their parents and hence they do
owe a duty to protect them.

Legal Person Rights

Can a company sue for its own interest and have rights similar to real people?
Corporate personhood is the legal notion that a corporation, separately from its associated human
beings (like owners, managers, or employees), has at least some of the legal rights and
responsibilities enjoyed by natural persons. In most countries, corporations, as legal persons,
have a right to enter into contracts with other parties and to sue or be sued in court in the same
way as natural persons or unincorporated associations of persons.

Under Indian law the corporate, managing bodies, etc. and several other non-humans entitles
have been given the status of the "legal person". In court cases regarding corporate, the
shareholders are not responsible for the company's debts but the company itself being a "legal
person" is liable to repay those debts or be sued for the non-repayment of debts. The non-human
entities given the "legal person" status by the law have rights and correlative duties; they can sue
and be sued, can possess and transfer property". Since these non-human entities are "voiceless"
they are legally represented "through guardians and representatives' ' to claim their legal rights
and to fulfil their legal duties and responsibilities.

25th Jan

How to distinguish between a voluntary and involuntary act

Whether an act being involuntary could mean anything in

Voluntary- something has driven through your conscience, associated w third segment I,e, mental
element. In case any act, it's driven through your conscience, to make it a voluntary act, use
subjective variables. The act can be considered voluntary based on the principle of foreseeability
or reasonability, essentially, deploying those principles in your thought process.

^done consciously, use subjective variables

Involuntary- no control over what you're doing, might lead to non-liability. If you don’t know
what you were doing then how to ascertain liability. Would it then be fair for society to incur
some liability on that person? Can it be wrongful if done involuntarily?

Speed limit, if you breach u cannot say it was involuntary. If we introduce subjectivity here, my
nervous system broke down, muscles were moving automatically and it just happened that I
pressed the accelerator accidentally and the vehicle rushed.

Prove it was involuntary, discussion about balancing social interests, herein the predominant
social interest was to protect the person who was going through a medical issue, no mental
element present. So invo act can lead to no liability, so didn’t want to enter intro that act so that
way it's an omission.

The mental element is connected to conscience. No real act.

Some form of the mental element has to be there,

Should be negligence, omission, intention. motive…. Something has to be there

NEGLIGENCE AS A MENTAL ELEMENT

Let’s place a hypo person there w reasonable intellect, adult, a general sense of things, he could
foresee what his actions could do. See foreseeability of consequence. In order to break this chain
for leading to action and consequence, break the chain of causation. You could see, it would
happen in negligence. You knew injury would happen, in that sense, this is also a mental
element. Negligence is also a mental act. Suppose there are trying to understand thru the
viewpoint of a reasonable person, would have he engaged in that act, in what matter he would
have engaged, what he could foresee as a consequence, resultant act, you think it was a mistake,
the law of neg says it was negligence, so there should be nothing between the mental element
and act.

So there would be some mental element.

In case of involuntary, a person can be absolved of liability.

CORPORATIONS

Property, engage in a particular business, can have its own source of income, these factors lead
us to understand that the corporation was constructed as a legal person. Act conducted in its
name can be held for legal violation If wrongful conduct is assessed. The course of act wrt that
corporation, if that course has a link to corp if there can be wrongful conduct so assessed then
there can be a liability.

The fact that it is an artificial entity, how do we attach a mental element. Even tho artificial
entities are run by persons. The alter ego doctrine places the people running the corporation as
the mind of the person. The agent running something, equals the mind constructing that mental
element.

MODULE 2- PERSONAL CAPACITY

WHO CAN SUE AND BE SUED.

People who are suffering from mental illness- If a person is ill but at the time of committing the
offence is not ill and he was in his senses- AT the point of commission if the constituents of torts
are met, then he will be liable, therefore if at the time of committing offence he was capable of
thought he will be liable.

People who are incapable of furnishing damages-

Illustration- Small kid who is dressed in rags asks for money, you say no and he slaps you and
goes away, what liability can be associated to such a person. The kid is poor and so are the
parents (minor’s liability falls on the parents)

Background

In India, there are many states who have decriminalised begging as it is not a choice because the
state has not been able to provide social security and its regressive to criminalise begging.

However, there are still states which have criminalised begging.

Tort perspective

Constituents of torts are met. There is an injury. Therefore, responsibility has to be attributed.

There is a lack of social responsibility and it is the duty of the state to ensure that the legal
systems are in force. Ideally, if a person is unable to furnish the damages or remedy- the liability
should fall on a responsible person and it ideally falls on the state.

27th Jan

28th edition of Ratan Lal ++ readings in the start

page 6 of pdf starts with general principles. (chap 1) subtopics: Nature, definition, tort and contract, tort
and crime distinction

Page 16- constituents of a tort, wrongful act, damage, legal maxims

page 24- general principles of liability

Page 27- act and omission, general elements in torts

From 31- mental elements

Page 34- difference b/w malfeasance, misfeasance, non-feasance

Page 35- fault

page 37- chapter 3 personal capacity

CAN A CHILD SUE?

In the case of a minor also, when considering the actions of a tortfeasor, the law takes the hypothetical of
a reasonably prudent person and how they would act in a certain situation. A child of a certain age can
however only be compared with a reasonable child of its own age and not a reasonable adult bc that
would be illogical.

Eg- the kid of age 7 compared w the reasonable hypothetical of age 7 kid only
As children grow up it is kept in mind that they do, to some extent understand the consequences of their
actions. The mental capacity of a child of age 5 and age 12 is for eg completely different. The older child
has better consciousness of their environment and the effect of their actions.

“The question for the judge is not whether actions of the defendant were such as an ordinarily prudent
and reasonable adult in the defendant’s situation would have realised gave rise to risk of injury, it is
whether an ordinarily prudent and reasonable 12-year-old child in the defendant’s situation would have
realised as much”

The law of torts makes no special provision for minors. Being a child simply doesn’t simply absolve you of
your actions.

In Me Hale v Watson, a minor aged 12, threw a metallic dart towards a post made of hardwood hoping
that its sharp end would stick; but instead of sticking, the dart bounced and hit a girl standing close by.
The High Court of Australia absolved the minor of liability for negligence as a boy of his age could not be
expected to foresee the risk involved. In holding so the court applied the principle that where an infant
defendant is charged with negligence, his age is a circumstance to be taken into account and the
standard by which his conduct is to be measured is not that to be expected of a reasonable adult
but that reason to be expected of a child of the same age, intelligence and experience.

The result of the case would have been different if the dart had been thrown towards the girl.

The issue is that this is not a general principle to be applied everywhere, it differs from case to case.

However, a general idea is that one has to distinguish between the liability of a reasonable adult and a
reasonable child and as one goes down the age ladder we discover it becomes harder and harder to
attribute liability to the actions of a person.

Secondly, most children have their own individual idiosyncrasies. A child may have history of
aggressiveness or mischief so while being a child in itself doesnt absolve one the individual
idiosyncrasies of children do have to be considered while deciding the liability of their actions.

CAN A CHILD SUE SOMEONE?

Can a child lay a claim for prenatal injuries?

Pre-natal injuries:

A minor can sue for all torts committed against him like any other person except that he has to bring his
suit through someone else. The preponderance of authority now is that a minor can also sue for prenatal
injuries.

The difficulty, that at the time the injury is inflicted, there is no legal person, for the foetus is not a legal
person is met either by holding that the cause of action arises on the birth of the child who is
deformed or by fictionally attributing personality to the foetus as is done in cases where a
posthumous child is held entitled to claim in accordance with the maxim Nasciturus pro jam nato
habetur.
On the recommendation of the Law Commission, the British Parliament passed the Congenital Disabilities
(Civil Liability) Act, 1976, Section 1 of which provides that a person responsible for an occurrence
affecting the parent of a child, causing the child to be born disabled, will be liable to the child if he
would have been liable in tort to the parent affected. However, there is no liability for a
pre-conceptional occurrence if the parents accepted the particular risk.

The main concept here is that if the wrongs committed against the foetus can be attributed to someone’s
negligence then liability will exist unless falls under exception.

Emeh v Kensington and Chelsea and Westminster Area Health Authority: CA 1 Jul 1984
A sterilisation operation had been performed negligently and failed and the claimant was born.

Held: When the pregnancy and birth follow a sterilisation operation, the mother can claim in full the
financial damage sustained by her as the result of the negligent failure to perform the sterilisation
operation properly, regardless of whether the child was healthy or abnormal and she is entitled to
damages for loss of earnings, pain and suffering and loss of amenities including extra care the child
would require in case of being born deformed.

But the deformed child in these circumstances would not be entitled to sue for damages as it could not be
said that there was any injury caused to the foetus or to the parents by the negligence of the doctor which
caused the deformity.

In the absence of any Indian Act, the Indian courts can take guidance from the English Act in deciding
suits by minors relating to congenital disabilities. The Supreme Court in Union Carbide Corporation v
UOI referred to the English Act and held that those who were yet unborn at the time of the Bhopal gas
leak disaster and who are able to show that their congenital defects are traceable to the toxicity from the
gas leak inherited or derived congenitally will be entitled to be compensated. Indeed, the father of a girl
child conceived and born after the disaster who died after four months showing symptoms of gas effect
because the mother had inhaled the gas was allowed compensation of Rs1.5 lakh by the Supreme Court.

28th Jan

Other portions to be covered under personal capacity: Husband & wife, Convicts

If the court denies liability of hospital, what does that mean for society since there are massive social
considerations, we need to consider policy decisions.

Also, we need to consider that they can not be made liable for the eventual circumstances that arose
because someone else (the mother) took a decision.

Regarding congenital diseases, India does not have a particular statute dealing with it. However, if a
doctor is responsible for a disability through the mother, he can be held liable.

The UK has a congenital disabilities Act 1976 that bars any liability against mothers anyone except the
mother, including the father can be held liable. In India however, mothers can be held liable for congenital
diseases.

Policy consideration: Why should mothers not be held liable?

Presumption: the relationship between mothers and children is sacrosanct, they carry the child with them
for 9 months and the child is a part of her which she would never want to hurt.

This presumption exists in India on a social level too but the Indian legislature has not deemed it fit to
introduce this law in India.

Liability between Husband and Wife

Earlier in common law, the husband could bring liability against the wife but the wife could not bring a suit
against the husband. The common law position before was pretty arbitrary. The perspective back then
was coloured by patriarchal narratives. Husband as guardian of wife, any sort of tortious claim against
wife implied that the husband will have to be joined. However, since it was a constitutionally void notion, it
is now entirely possible that husband and wife can take action against each other.

Earlier, the wife couldn’t make a complaint against the husband, how is a guardian committing a tortious
act against a person they are supposed to protect. The justifications to these narratives do not hold any
relevance now.

Under article 14, to make such a distinction and to not allow the individual to claim for a remedy against a
wrongful actor be unequal treatment, a discriminatory, violation. When we consider this relationship, the
manner in which CL dealt w this rel, any sort of conduct w third party, related to the third party, this was an
arbitrary situation, now it has been removed. So if there is a wrongful act which had been perpetrated by
husband against wife and wife against husband, they can sue. It need not be the other spouse can enjoy
relief from liability, coz it’s a private wrong.

3rd parties can not enjoy the benefits of a conversation that takes place between husband and wife, since
that is a privileged conversation. But the husband and wife can use the conversations against each
other if bringing a lawsuit against the other person.

# CPC Section 122 regarding marriage lays down the privilege of communication between husband and
wife.

Relating to convicts and prisoners

Convicts and prisoners retain most of their fundamental rights other than a few like rights to movement.

In the case of convicts what sort of rights a person would retain?

- Some can be retained not all, should have the right to sue
- The rights retained and the rights they lose when convicted
- a major one, freedom to move. nature of civil rights changes, some of them are rightly excluded,
freedom to move curtailed immediately,
- right to vote - as long as the person is convicted,
- right to liberty and sue maintained - no custodial torture, so convict has right to sue

There is a responsibility on the state to keep the prisoners safe within the premises of the prisons.

Eg. There is a prisoner who is at suicidal risk and the state does not take any action and the prisoner
commits suicide inside the jail. The state can be held liable for this.
Case: R. vs secy of state

Facts- there is a statute called the prison act 1952

Applicant Issue- the rules which are then laid out these rules allow for searching of the cell, but without
the presence of the inmate within that cell. The justification for this type of search, is that if the inmate
remains inside, there are chances of intimidation and the search might be compromised. Issue is that the
convict leaves his legal correspondence w the lawyer, where else will he keep it other than the cell.
During the search the police can enter the cell, they can examine this correspondence but they can’t read
it. the purpose is to see, Within this correspondence, there are hidden materials, plans to escape,
anything to do w the security of the prison, this is the logic behind having this rule in place. The Applicants
is saying, I have a right to have access to a lawyer, communication is privileged, and I do not wish to
reveal the same. If I am not intimidating officials then how is it that you can justify such a rule wherein
they can come and read the communication, it will hamper the right of seeking legal remedies.

Justifications exist there on both sides but effectively what we are considering is, the fact that the person
is a convict, still contains certain rights, we look at this possibility through a lens of reasonability. It's imp to
place ourselves in that specific position and see whether we find it reasonable or not.

The reason that the state was offering, that the rule was in place to prevent intimidation and require
detailed knowledge, so prisoners will hide it in such a way that such info is not available.

(Reads)…..a person in custodial order…….reasonably necessary to meet the ends to justify the
curtailment…….amounted to an infringement of the prisoner’s legal right.

Here, idea- when we look at rule from the lens of reasonability. While there is a justification from the state,
but to place such a rule against the entire mass of convicts on the presumption that All the convicts of the
same manner, intimidation, hiding of info…, searching such an idea is against the idea of reasonability.
Such action should be taken against such a person(prisoner) who would probably cause intimidation
during search etc, then it is reasonable. DOCTRINE OF PROPORTIONALITY: There needs to be some
sense of proportionality, such a blanket rule is unproportional and hence unreasonable.

When we consider Privileged legal communication, it implies the information cannot be forced out of u
even by a court. There is a reason why the client opens up, its coz its privileged communication. Courts
cant push you to reveal if you're the counsel and it cannot be used against the client in court. The only
situation where it can be called into ques, where the offence has not been committed yet, as in client is
planning to rob a bank or something, aware of some offence that is going to happen then u become a
necessity that is not privileged info. What happens between client and advocate is completely privileged.

CONCLUSION

- Wrt convicts and people who have been imprisoned, there is a certain amount of curtailment of
liberty.
- Right to life, the most basic right will be retained by such a person. For example, they can hold
property, freedom of speech -can talk to people who visit him, reporters
- There is a certain amount of curtailment of liberties but most basic rights will be retained, the fact
that he cannot practice a particular profession but he can hold property, can talk to people who
 visit him. Any curtailment will have to be in accordance with procedures established by law. So an
extra level of curtailment, the next step of curtailment essentially, pest by law. Procedures
established by law cannot be arbitrary, there have to be reasonable justifications for placing such
curtailments.

31st January

Personal Capacity of convicts-

R V Secretary of State

Doctrine of proportionality can be used to build the reasonability of decisions. In this case, the
purpose itself is not reasonable to an extent as it is not proportional. There can be certain
prisoners capable of creating obstructions to search and justice but the rule cannot be applied to
all-this is unproportional. It can directly impact his right to converse with legal representatives.

Public order and national security - If a client comes to you and says he is guilty of violating a
person’s bodily integrity. The fact that a person admits to something does not mean he is guilty
of offence or tort, there are other factors such as self defence.

Legal representation is an extension of due process of the law and an extension of Article 21
itself. Due process is owed to every person. Therefore, the conversation between attorney and
client is confidential.

Exceptions- Under the Indian Evidence Act :-

1) Any communication made in the advancement of any illegal purpose.

Public order which will be affected due to an illegal activity is not confidential and can be
revealed by the attorney in the interest of Public order and national security,

2) Any fact coming to the awareness of the attorney, barrister, pleader or vakil, showing that
any crime or fraud has been committed since the commencement of his employment on
the concerned matter.

Public order which is affected on account of activity which the attorney has knowledge of which
isn't in the past but is going to happen or has happened during the course of employment, is not
privileged and can be disclosed in the interest of public order and national security.

When we consider personal capacity, there are one set of people who stand excluded from the
ambit of legal representation because they cannot file suits in India- Alien-Enemy.

ALIEN-ENEMY
Section 83 of the CPC-

Alien enemies residing in India with the permission of the Central Government, and alien
friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of
India, but alien enemies residing in India without such permission, or residing in a foreign
country, shall not sue in any such Court.

Explanation.-- Every person residing in a foreign country, the Government of which is at war
with India and carrying on business in that country(enemy country) without a licence in that
behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be
an alien enemy residing in a foreign country.

CAPACITY OF STATE- STATE LIABILITY

The state can be held liable for the actions undertaken under its name. Sovereign Immunity
claimed by positivists as a context for subverting individual rights and forcing state autonomy
and state intervention. King can do no wrong- king was seen similar to divine and god can't do
wrong, therefore neither can king. This idea percolated to state and the meaning of sovereign
immunity depended on the form of state. Autocratic state- used it to employ an iron fist.

State is a fictional entity which is run by agents. The agents are running conducts in the name of
the state. The state cannot take unreasonable action and all such breaches where there is no
reasonable justifications, the state will be held liable.

The system of Constitutional Tort (Lilavati Behera case) - Vicarious liability is the liability that
lies upon a person for an act done by someone else. It comes into play often in master-servant
relationships. Constitutional Tort is generally a judicial instrument by which the state can be held
vicariously liable for the acts of its servants.

It’s the legal action to get legal remedy in the form of damages when any of the constitutional
rights are violated. The only exception lying is that it cannot be made liable if the act is done in
exercise of sovereign (government) functions- sovereign immunity

Fundamental rights if violated, environmental cases which affect communities at large-

reparations have been provided by the courts.

Sovereign immunity in democratic set up has been therefore diluted.

MODULE 3

JUSTIFICATIONS- Formal term for “excuse”. A valid legal excuse a person brings against a
liability of tort- general defences or justifications.
Parental and Quasi-Parental Authority

Context of Chastisement and Corporal Punishment- Teachers beat students and it led to certain
grevious injuries such as deafness, muscular injury, paralysis, nervous shock.

Two sets- Parents and Quasi-Parents [guardians (granted parental capacity with the consent of
the parent)or with the consent of the parent are performing the responsibility of the parents-
TEACHERS]

Illustration-

Regina V Hopley (1860)

Headmaster of a school(hostel premises). A child of 8-12 years has been sent to this school.
Headmaster thinks that the child is mischievous and there should be infliction of physical pain.
He writes to parents and says that - your child is obstinate and if this was my child I will chastise
him again and again. I want to know your wishes. Father writes back- I don't wish to interfere
with your plan.

One day the headmaster takes him to the basement of the school and beats him for two hours
with a stick and skipping rope. Then takes him to the room and beats him again till the child dies.

The defendant was a schoolmaster. He wrote to a pupil's father to obtain consent to chastise the
pupil stating that the pupil, a 13 year old boy, was obstinate and if he were his child he would
chastise him and if necessary continue at intervals even if the boy held out for hours. The
father replied agreeing to the course of action. The defendant subsequently beat the boy
repeatedly for two and a half hours with a thick stick. The boy died.

There was parental consent however, the amount of pain inflicted raises the question of
reasonableness.

Held: The defendant was liable for manslaughter and sentenced to four years imprisonment.

Lord Cockburn CJ:

"By the law of England, a parent or a schoolmaster (who for this purpose represents the parent
and has the parental authority delegated to him), may for the purpose of correcting what is evil in
the child inflict moderate and reasonable corporal punishment, always, however, with this
condition, that it is moderate and reasonable. If it be administered for the gratification of passion
or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted
beyond the child's powers of endurance, or with an instrument unfitted for the purpose and
calculated to produce danger to life or limb; in all such cases the punishment is excessive, the
violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is
answerable to the law, and if death ensues it will be manslaughter...

It is true that the father authorized the chastisement, but he did not, and no law could, authorize
an excessive chastisement. There can be no doubt that the prisoner thought the boy obstinate, but
that did not excuse extreme severity and excessive punishment."

From this point onwards, the states understanding on infliction of corporal punishment focused
on physical pain and reasonable phyiscal pain was justified. Up until recently, the education rules
of India permitted infliction of physical pain upto six cuts of a specific instrument (if a rod is
used, there could be six cuts) - legal corporal punishments.

The understanding took a different perspective when the ends it seeks to achieve were questions-
it led to regression of the child instead of benefitting him. The convention for rights of child
came into existence. To inflict pain creates a barrier in the brain of a child as something negative
which is abysmal because education should be positive.

This concept is a part of RTE act. Section 17 states that physical punishment is not allowed. The
rules of states have been amended to remove physical punishment that must not be allowed.

The person cannot get away with it. The justification of parental authority(teachers) against the
torts of battery is not accepted legally anymore, therefore it cannot be used as a defence.

2nd January

Matter before Delhi HC- Delhi School Education Rules, 1973 - which allowed for corporal
punishment of children in schools- whether they were constitutional or not was the question
before the court

Parents forum for meaningful education v UOI 2000- AIR 2001 Del 212: (2001)

In this case, it was considered whether the rules [in Delhi] that allow infliction if pain which
could be legitimately given in schools as long as it is not unreasonable, is valid. Rules said-
corporal punishment can be given by head teachers for various reasons, shall not be severe or
excessive, etc.

Court referred to several aspects- CRC [convention on rights of children], Constitutional

provisions towards protection of children, fundamental right to life, and a scientific analysis on
its consequences on children who go to attain knowledge in schools.
Para 11 of judgement refers to Indian National Policy on education of 1992- there shall be a
child-centred approach in education in which all concerned share solitude for the needs of the
child. Corporal punishment shall be firmly excluded from all forms of children. Even animals are
protected from such treatment, why shall our children not be provided with the same.

Studies have also shown that the spanking of children result in undesirable effects. They become
withdrawn and exhibit anti-social behavior. Children who are ruled by the rod in school may
acquire disdain and hatred for their teachers. Beating affects their concentration in studies and
leads to development of fear psychosis towards learning. Fear of corporal punishment
discourages regular attendance at schools and increases drop out rate. This obviously hampers
and obstructs education and affects their right to education, which is a fundamental right flowing
from Article 21.

This judgement demonstrates how archaic it was and helped bring in required changes such as in
RTE Act, section 17 says prohibition of physical punishment or mental harassment.

Important:

The Delhi High Court approaches the issue from the perspective of child rights under various
conventions as well as article 21; considerations of fear psychosis being induced by Corporal
punishment that may cripple the child's desire and ability to learn or be educated

The threshold of any authority to inflict moderate pain given to quasi parental authorities can
easily be abused/ quasi parental authorities often are given sympathy and leniency even by
parents

The government eventually banned all Corporal punishment in schools under the RTE in 2009

In some places, mental harassment and bullying have replaced physical punishment- also
constitute tortious liability, likely to see increasing focus.

While quasi parental authorities are now barred from the infliction of pain it is still allowed for
parents to inflict moderate pain or reasonable pain. However, there is an increasing focus on the
child's rights and any case has to be viewed from an increasingly narrow perspective off
reasonableness

Liability for corporal punishment in torts’

Parents can justify an assault or battery by way of chastisement provided reasonable force by
way of correction is used, according to Children and Young Persons Act 1933, section 1(17) of
United Kingdom. At common law head and assistant teachers, both at boarding and day schools
had the right to use reasonable force to correct the children under their tutelage Fitzgerald v.
Northcote (headmaster, boarding school), Ryan v Fildes (assistant mistress, day school). Section
47 of the Education Act 1987 prohibits corporal punishment in schools and for state funded
pupils in independent schools.

Use of force to punish a child as opposed to limited force needed to protect a child from harming
himself or others will be no defence to an action for assault and battery. The defence of exercise
of disciplinary powers will remain available to teachers in independent schools against fee
paying pupils and this defence will not be available in acts involving beating the child.

The force used must be reasonable in the circumstances-presumably the offence, the age and
physique of the child, his past behaviour, the punishment, the injury inflicted, are all material.
Not only must the teacher use force which is objectively reasonable but also he himself must
have thought it reasonably necessary in the circumstances. Thus parents or persons in loco
parentis may, for the purpose of correcting what is evil in the child, inflict moderate and
reasonable corporal punishment.

Judges Protection Act

Absolute power of private suits against judges

The Act confers a very wide protection which is not limited to judicial functions but also covers
official functions. The Act, as it is, completely debars any private person to file any civil or
criminal proceeding in a court against a judge even if he has acted outside his jurisdiction or
authority and with malice provided the act complained of was done in the course of acting or
purporting to act in the discharge of his official or judicial duty or function.

Purpose- ensure fairness of judiciary- ability to give decisions without biasness and w full
freedom

There is an absolute bar against private action but public action is allowed as a fail-safe for due
process to exist- so that malicious action doesn't go unpardoned but at the same time unbiased
delivery of judgements is ensured

A judge is not protected in their private capacity but only in the performance of their duty they
are granted such protection.

PROVOCATION

Can provocation be a defence to justify your conduct in any particular situation when you have
breached someone’s legal right?

Every person has a right to defend his own person, property, or possession, against unlawful
harm. “When a man strikes at another within a distance capable of the latter being struck, nature
prompts the party struck to resist it, and he is justified in using such a degree of force as will
prevent a repetition.”

Normally “no verbal provocation whatever can justify a blow.” The force employed must not be
out of proportion to the apparent urgency of the occasion.

The person acting on the defensive is entitled to use as much force as he reasonably believes to
be necessary. The test is whether the party’s act was such as he might reasonably, in the
circumstances, think necessary for the prevention of harm which he was not bound to suffer. The
necessity must be proved. Injuries received by an innocent third person from an act done in
self-defence must be dealt with as accidental harm caused from a lawful act.

Arguments-

Nature of Provocation and its Intensity or Continued Use should be taken into account

Response to Provocation is still voluntary in nature, even if it lacks sufficient mental element or
intent at times it is still a result of voluntary muscular contraction and therefore one shouldnt be
absolved from their actions. All these external factors should only be taken into account while
determining the quantum of punishment for a person’s actions.

Time period allowed for reaction to provocation should be taken into account

Sir’s comments:

Our understanding of grave and sudden provocation in criminal law is in some way overlapping
with our possible opinion on provocation as a justification in civil law. Should we be drawing a
distinction between the two and to what extent?

Whether we can a distinction between provocation as a complete defence and provocation as a

mitigating factor in limiting the quantum of damages or punishment awarded

3rd february

Involuntariness is linked to some psychiatric disorders. The consciousness of will does not exist
in such cases. When we take that into consideration, we realise provocation is an exception.
Provocation can be an invitation to commit a tort. It can blur the lines of voluntarily asking for
injury. It can lead to mitigation of damages. Usually, courts give real damages,

Provocation can be an invitation to commit a tort and it can blur the lines between voluntarily
asking for injury. Provocation can be for mitigation of damages. Courts usually grant real
damages and aggravated damages (intention, malic).
During a fight, if the degree of provocation is proportional, it becomes voluntary and it nullifies
itself and there would be no liability.

Case 1- Downham V Bellette 1986

Facts- There are neighbours who stay in adjoining properties and they open out to a highway and
there is a driveway which leads to the house of the defendant and the plaintiffs as well.

The plaintiff at some point of time made an accusation that the defendant was having an affair
with his wife and from this point their relationship became sharp. After a point of time, it was
realised by the defendant that on their driveway there was some defecation and they presumed
that this was done by the plaintiff. Thus, the defendants decided that they would keep a watch
and at 6 am in the morning the plaintiff came out and he had a rifle and walked to an area where
there were rabbits (hunting). He went to the driveway of the defendant and defecated in the
driveway. They beat him. The police were informed and they instructed the defendant to leave
him. The plaintiff filed a suit of assault against the defendant.

Injury sustained- Fracture, bruises and scratches. He also sustained a dislocated shoulder and was
restrained for some time.

Issue: Does the plaintiff's actions amount to sudden provocation and was the reaction partially or
completely proportional?

It was held that even though the plaintiff's act was a trigger, the action of the defendant was not
proportional. . After a consideration of the facts, Underwood J. held that "[although the plaintiffs
conduct was reprehensible it did not justify the assault and subsequent period of false
imprisonment,,: and that "the plaintiff was the victim of an actionable assault, battery and false
imprisonment,,

On the specific issue of provocation, Underwood J. noted that the plaintiff's act of "defecating in
the first defendant's driveway was calculated to annoy the defendants and members of their
families who use that driveway and was the immediate and precipitating cause of the assault and
false imprisonment".

He however observed that "the plaintiff's conduct is relevant to a claim for aggravated damages".
In so holding, Underwood J. found support in Owen J.'s view in Fontin v. Katapodis that: [in] a
proper case the damages recoverable are not limited to compensation for the loss sustained but
may include exemplary or punitive damages as, for example, where the defendant has acted in a
high-handed fashion or with malice. But the rule by which the defendant in an action in which
exemplary damages are recoverable is entitled to show the plaintiff's own conduct was
responsible for the commission of the tortious act and to use this fact to mitigate damages has no
application to damages awarded by way of compensation.
Case 2. Lane V. Holloway

Facts- The Claimant, a retired gardener, was injured by Defendant in a fight. The Defendant,
aged 23, owned a cafe close to where the Claimant lived. The cafe was frequented by youths late
at night. The Claimant objected to the behaviour of the youths and the relations between the two
neighbours were strained. One day the defendant’s wife started hurling abuses to the plaintiff,
and in response the defendant said:

“Shut up you monkey faced tart”

“What did you say”

“I want to see you own your own”

The Claimant, thinking he was about to be hit, punched the Defendant. The Defendant then
struck the Claimant in the eye. As a result of the punch the Claimant received 18 stitches and
required surgery. The Claimant brought an action for damages.

The trial judge found the Defendant liable but reduced the damages on the grounds that the
Defendant had been provoked into the action and therefore awarded the Claimant £75 rather than
£300. The Claimant appealed on the reduction of damages and the Defendant appealed
contending that ex turpi causa precluded recovery.

Issue- Whether there is provocation here and whether it was proportional or not and whether
there will be mitigation of damages?

Decision-The Claimant's appeal was successful. There was no grounds for reducing damages for
provocative conduct. The Defendant's cross appeal was unsuccessful. The Defendant's actions
were out of all proportion to those of the Claimant.

The focus should be on the fight and who started the fight and proportionality should be based on
the fight itself.

Provocation worked as an invitation. There was an invitation to fight through the conversation.
This brought in defence (overlaps and blurs the line of Self defence and volenti non fit injuria).
This overlap states that the proportionality should be based on the fight itself.

Lord Denning MR:

Even if the fight started by being unlawful, I think that one of them can sue the other for
damages for a subsequent injury if it was inflicted by a weapon or savage blow out of all
proportion to the occasion. I agree that in an ordinary fight with fists there is no cause of
action to either of them for any injury suffered. The reason is that each of the participants
 in a fight voluntarily takes upon himself the risk of incidental injuries to himself. Volenti
non fit injuria. But he does not take on himself the risk of a savage blow out of all
proportion to the occasion. The man who strikes a blow of such severity is liable in
damages unless he can prove accident or self-defence.

Salmon LJ: It must have been a savage blow, that the plaintiff must have smashed his fist with
great force into the eye of this man 40 years older than he was, after coming up to him in a
threatening manner and having received no more than a slight punch on the shoulder. To say in
circumstances such as those that ex turpi causa non oritur actio is a defence seems to me to be
quite absurd. Academically of course one can see the argument, but one must look at it, I think,
from a practical point of view. To say that this old gentleman was engaged jointly with the
defendant in a criminal venture is a step which, like the learned Judge, I feel wholly unable to
take.

Case 3:Bird v holbrook 1828

Moving away from the angle of provocation and moving towards self defence more.

What sort of measures can be taken in the name of self defence. This can mean in response to

1) an action of aggression

2) a threat to your property

- what measures and actions can he take against aggression and threat to property.

Facts: The defendant has a large lawn and has a variety of flowers on his property and he has
kept loaded spring guns on his property. This is a lethal object and causes fatal injuries.

There is the plaintiff who has jumped into the property because he wanted to rescue a fowl and
he stepped on a spring gun and maimed his leg.

Issue-

Whether the act of the defendant is reasonable considering there was no notice of the presence of
hazardous substance?

In the name of protection of property can measures be taken and is it a duty to inform the
trespassers?

If the set of facts are considered, a relation can be established between the last two cases- the
defendant- you are the one stepping on my property so you expected something, you provoked
the act, which is why I acted.
Decision-

One who sets a spring gun trap for the purpose of catching an intruder without posting a notice is
liable for damages. In this case, Defendant placed the spring gun trap for the purpose of doing
injury. Defendant decided not to give notice of the spring gun trap because if he did, he would
not catch the thief. Defendant intended the gun to be discharged into the victim.

Concurrence. (J. Burrough) Notice of the spring gun trap should have been given. If the
Defendant wanted only to protect his property from thieves, then he would have set the spring
gun trap only at night. Plaintiff was only a trespasser. If Defendant were present he would not
even be allowed to take Plaintiff into custody. No man can do indirectly that which he is
forbidden to do directly.

Defendant placed a spring gun in his house to protect his property. If the spring gun is tripped, it
would not be able to distinguish between the innocent trespasser or the intentional trespasser.
Here, Defendant is held liable, and Plaintiff happens to be an innocent trespasser. It is not clear
how the court would have held had Plaintiff been an actual burglar.

4th February

Violenti Non Fit Injuria

Essentially says that if I voluntarily subject myself to a situation where I have suffered a
consequence then the plaintiff, he is a person who cannot then inititate an action and
volenti non fit injuria would then be placed against the def as they chose to insert
themselves in the situation. The defendant would be saying u willingly chose to be in that
situation.

VNFI in medical negligence

Case: Samira Kohli v prabha manchanda 2008 SC

Complainant came to the hospital complaining of menstrual pleading. Procedure prescribed:

Laporoscopy

–where there is a large incision on the abdomen made for the purpose of inspection to determine
what is the cause of the issue. That was the consent given. To then conduct such a procedure of
laperectomy, during the procedure, dr, was of the opinion that there was an urgent need for
procedure to be conducted- removal of ovaries and uterus. Consent of the mother was taken
Complainant on finding out later was claimed medical negligence. Pros not explained to her,
risks no explained therein the dr. was negligent so compensation should be provided to the
complainant.

During the surgery, Dr. felt there was a need to conduct a more serious surgery, removal of
uterus done w the consent of mother. P left without paying fees. Suit filed for fees, counter basis
complainant filed suit in consumer forum. There are two narratives. In context of the plaintiff
and respondent there will always be narratives and counter narratives. A side trying to project its
issues will always show a side favourable to them.

1, complainant allegeing a sequence of facts

2. Dr alleging a sequence of facts

3. What actually happened: Whether consent was actually given and how do we construct
such consent in indian consent? Complainant narrative- she consented to the procedure of
laparotomy, body for purpose of examination, its diagnostic procedure. No consent given for
any other procedure. So the consent form specifically mentioned it is going to be a diagnostic
procedure i.e laperectomy. No way she consented to additional procedure adopted by Dr.

Narrative by dr- woman 40 ish, would not have been able to conceive anyway even w the uterus

Neccesity: but still the logic is that complainant should be given the choice to make that
decision for herself coz the consequences are massive and its irreversible. Also,
alternative treatments are also available to this procedure in case of endometriosis

If this were life and death situation then dr. has complete freedom, take full action to protect
the right of the person. In the given situation, could have waited, it points to callousness.

Considerations made:

Whether the consent given by p was adequate the fact that the operation that was conducted it
was within the norms of medical practice and was reasonable, on that acc dr should be absolved
Court laid down

Imp guidelines, deeply connected w the idea of dr. disclosure, what should be the level of trhat
disclosure to which consent should be provided.
 See an evolutionary approach to the kind of consent that ca be
provided:

1. Bolam v. friern hospital management committee,

1957 1 wlr

Theres is this person who got admitted to a mental hospital for a procedure that is not
accepted today called electro convulant treatment. So while this procedure was being carried
out this person was not given any muscle relaxant, he was not bound to the operating bed so
there were bodily convulsions and the person suffered injury.

The ques is can the dr. be held liable for neg or not.The fact that the patient suffered injury,
counter relevant here is what was being followed at that time in medical field. It inclined
towards if bounds are introduced, the chances of other injuries rise like fractures based on this
observation the hospital held the hospital to not be liable

Bolam test (REAL CONSENT): there is no breach of medical prac if dr. acts in a manner
which is in accordance w the common practice (determined by common practice amongs
responsible medical practitioners to determine what is a reasonable practice)—doesn’t matter if
there are others with expertise who disagree. What it describes is that such reasonability has to
be seen from the prspective of the general procedures followed. Counter opinions wont count for
much.

Real consent in Bolam explained in samira Kohli

Under bolam test- focus is on practice followed by responsible body of medical

professionals’ even if there are counter opinions, saves from liab. The real consent test coes
from 3 factors
a. Patient gives consent without coercion

b. Capable of giving consent (capacity)

c. Patient has minimum of adequate information

2. Bolitho v. city and hackney administration 1996

Bolitho test given here. There is a 2 year old boy who is suffering from respiratory condition.
This requires special attention. The hospital has assigned a special nurse to take care of the
patient on a one to one basis. Boy suffers from respiratory attack. Dr, personally did not visit
the patient.

On the second occasion apart from the severe respiratory attack also suffered cardiac arrest
resulting in brain damage and he died. Whether Dr. liable for negligence or whether can escape
based on bolum test. Acc to mother of child, dr. could have taken the procedure of intubation
through thorax. Since it was not provided therein lieas the question of negligence.

Dr. says that there is medical practice which dictates that in such a situation intubation was not
needed. Even if I would have visited, I would not have carried out intubation anyways. So the
fact that I go or did not go is irrelevant. As applying bolum test I wouldn’t be liable as
intubation isn’t provided as a treatment for the condition in general medical practice.

Bolitho test: if we place a heavy reliance on proffessional practice. Because here prof practice
seems to beat logic. There was an incident earlier, dr, said for second the boy was normal
pumping around so intubation wasn’t needed, so this defeats logic. So the court is not
disregarging bolum test but we also have to see the logical and reasonable sequence of events. If
it says a certain procedure should have been followed then bolum test can be disregarded. So
bolitho test is a supplement to bolam test so an

exception to the medical general practice, a logical sequence of things would overpower. Court
can hold medical practice as illogical. Less about intubation, more about doctor’s presence. If
he were there In some action would have been taken but since he did not go there was no scope
of any action whatsoever. Visiting the patient is also a part of medical procedure

3. Canterbury v Spence 1972

Case which deals w the concept of informed consent. It is dramatic lead from a reasonable
practice followed in med prof parameter. On one side, doctor can be absolved of liability if
reasonable. Now here, patient at center, whether disclosure was sufficient for there to be consent.
Onus is on dr. to explain the procedure based on which patient will provide consent. Approached
the dr w back pains. Surgery over the spinal cord. Small possibility of paralysis. Informed by dr.
of surgeries but not of the risks that will follow.

As Dr. was of the opinion that if the risks are told in much detail to the patient then there will be
fear in the patient and acc to the dr. the best sol was to carry out the procedure.

1. The patient firstly did not inquire too much into the risk himself

2. Dr. himself did not provide too much details of the risks associated in this case surgery was
carried out, post surgery p got into a serious condition, fell from the bed and suffered complete
paralysis. Subsequent treatment done improved, but still critical.
Reasonably Prudential Person and Informed Consent standard US

In this case surgery was carried out, post surgery p got into a serious condition, fell from the bed
and suffered complete paralysis. Subsequent treatment done improved, but still critical.

Is there neg on part of dr. or has the patient given consent and will it come under vnfi? Was it
adequate consent to be governed by vnfi The trial court held that in the case of negligence obv
neg has to b eproved. Here enough proof wasn’t provided to prove negligence.

Trial court estb that sufficient evidence could not be est and absolved the dr of liab. In appeal the
focus was on the kind of info by the dr. and its ssufficient. So more on procedure itself rather
than conseqeucne. Whetjer bbthe procedure itself should have been carried out or not.

Court:

1>-the dr. should have revealed the rsik of paralysis from the procedure--. For stating this the
corut refers to fundamental aspect of control of a person over body Every human being has a
right to determine what shouldbe done to his own body

2>Duty of physician, adequate info given The drs non compliance from professional custom
to reveal may cause liability The patient’s cause of action, non compliance, irrelevant medical
practices…. Its conduct cor

3>Its unrealistic for the drs, to discuss w the patients every aspect of treatment, remote,
unnecessary. Risk is material is when

4 In case of emergency does not have to disclose when patient becomes ill or emotionally
distorted

5. The privilege to withhold info does not include the paternalistic notion that the doctor may
remain silent bc they know the best

^Choice is of the patient whether they want to take that treatment or not. In order for the patient
to be informed, the risks have to be shared. This does not mean that all kinds of risks should be
shared w a patient but all kind of ascertainable risks should be shared w the patient so the patient
is able to give their informed consent.

Now back to Indian Case.

Something that both parties cannot deny. There was operaton, there was surgery. Complainant
was unconscious during consent. Acc to dr, Comp had no problem, mother had no problem. The
comp’s suitor had an issue. Court trying to decide

1. Most imp, whether consent was given for this procedure and if consent was not given can
we then attribute negligence to the party concerned. Both of these are related What consent
is?...para 26,27,28,29, 30 in these paras the sc has laid an incredible ampint of emphasis on
the nature of medical treatment in india. In us they follow informed consent …

Summary of principles: (copy from the case)

(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment'
(the term 'treatment' includes surgery also). The consent so obtained should be real and valid,
which means that : the patient should have the capacity and competence to consent; his consent
should be voluntary; and his consent should be on the basis of adequate information concerning
the nature of the treatment procedure, so that he knows what is consenting to.

(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who
treats the patient, should enable the patient to make a balanced judgment as to whether he
should submit himself to the particular treatment as to whether he should submit himself to the
particular treatment or not.

This means that the Doctor should disclose (a) nature and procedure of the treatment and its
purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial
risks; and (d) adverse consequences of refusing treatment. But there is no need to explain
remote or theoretical risks involved, which may frighten or confuse a patient and result in
refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote
or theoretical risks of refusal to take treatment which may persuade a patient to undergo a
fanciful or unnecessary treatment. A balance should be achieved between the need for
disclosing necessary and adequate information and at the same time avoid the possibility of the
patient being deterred from agreeing to a necessary treatment or offering to undergo an
unnecessary treatment.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for
therapeutic treatment. Consent given for a specific treatment procedure will not be valid for
conducting some other treatment procedure. The fact that the unauthorized additional surgery is
beneficial to the patient, or that it would save considerable time and expense to the patient, or
would relieve the patient from pain and suffering in future, are not grounds of defence in an
action in tort for negligence or assault and battery. The only exception to this rule is where the
additional procedure though unauthorized, is necessary in order to save the life or preserve the
health of the patient and it would be unreasonable to delay such unauthorized procedure until
patient regains consciousness and takes a decision.

(iv) There can be a common consent for diagnostic and operative procedures where they are
contemplated. There can also be a common consent for a particular surgical procedure and an
additional or further procedure that may become necessary during the course of surgery.

(v) The nature and extent of information to be furnished by the doctor to the patient to secure
the consent need not be of the stringent and high degree mentioned in Canterbury but should be
of the extent which is accepted as normal and proper by a body of medical men skilled and
experienced in the particular field. It will depend upon the physical and mental condition of the
patient, the nature of treatment, and the risk and consequences attached to the treatment.

2. In India medical treatment is heavily dependent on trust. Patient’s socio economic

status, go to govt hospitals for cheaper/free treatment placing a lot of faith in the dr.
hospitals are overstaffed, adequate equipment not present. In that sense bcoz we are
considering people from such a strata we need to understand the context and medical
terminology and its extent drs. Deploy in prescription. Imagine dr. sitting down to explain
every single aspect to the patient. In govt hospital impossible. What can apply even to that
context is the bolam test what they call real consent
3. Informed consent is another level , not possible in india. Have to go w real consent. If you
have paid for treatment the service you receive should not be deficient. For every consumer
dispute there has to be payment of some consideration. If there is free service then not
consumer issue , then civil suit where they will consider the real consent test.

Court is saying that we should consider real consent test. Risks should be given no matter how
minimum. If person gave diagnostic consent then therapeutic procesudres cannot be undertaken.
In case of emergency, assumption backing this context is that the procedure carried out by the
Dr. more often than not bc it was necessary to be conducted this is something the patient would
have consented to. W this were bringing in a lot of subjectivity. It is subjected to reasonable
practice by reasonable practicitonsers. This is the link between real consent test and bolam test.
Whereas in informed consent test(canterbury) there is reasonably prudent patient test
Assumption is that patient is informed and prudent enough to give consent which is not
possibole in india. Therefore real consent test used in different countries uk, india

The requirement of consent in indian context is real consent characterised by 3 factors

1. patient gives voluntarily without any coercion

2. Has capacity and competence
3. Has min of adequate level of information of the procedure to give consent

7th FEB

Authorities of necessity

Comes under claims of torts. The basic idea is that in case of necessities, can such necessity be
justified against a claim in tort. Common authorities of necessity are people in-charge of
passenger transport. These people are authorised to take reasonable action.

hook v cunard steamship 1953

There was a passenger cruise that travelled from X to Y. It had 800-900 passengers on board. It
had the usual class distinctions for the cabins. There were also 80-90 crew members. A senior
crew member was providing his services in the restaurant. A passenger had his 6 y/o daughter
with him. He claimed that a crew member had acted indecently with his daughter. He wanted the
crew member to be locked up until they reached their destination. He reported his grievances to
the captain, who agreed and locked up the crew member (did not consult the crew member). The
latter was confined for the rest of the journey and he was allowed to move around freely on the
return journey. There was no issue on the return journey. The crew member said his legal rights
were violated and that the confinement was not reasonable. Thoughts?

Same situation, but what if he was given an opportunity to be heard and he asserted his
innocence?

The girl never elaborated on the accusation

There were other methods of separating the victim and the accused

Therefore the captain’s actions were not reasonable

“The question is not whether the captain believed the accusations to be true. Nor is the question
whether he had reasonable grounds to believe the accusations were true. The question is whether
the imprisonment of the crew member was necessary to maintain order in the ship.” concluded
that it wasn’t necessary.

The action taken by an authority out of necessity must be reasonable and necessary.

Necessity as a justification is different from authorities of necessities. The latter has to do with
the authority of the person and the necessity of the action in those circumstances.

Former has 3 fronts: front of public necessity, front of private necessity (distinct from private
defence), front of necessity of third person.

The first front has a utilitarian justification. For the purpose of a greater good, certain actions can
be taken. For instance, taking down a building to prevent a fire from spreading. Public necessity
outweighs private concerns.

The second front arises in a situation where private rights are being suppressed in a situation and
in the current circumstances, it is important to sustain those rights. Consider hawkers. Can there
be an action against them for causing disturbance on the streets? They’re not doing it because
they have other means to carry out their trade. This is perhaps the only way for them to earn their
livelihood. Therefore there is a private necessity there, and its conflict with public purpose can
be resolved by providing a reasonable solution to it. This could be in the form of preventing them
from sitting in one specific place to conduct their business. This prevents claims of property that
don’t exist and exacerbating the disturbance.

The third front. There’s a car barrelling towards some guy on the road and, to save him, you grab
him and throw him onto the ground. He gets some injuries and brings a suit against you for those
injuries. In such a scenario, the necessity of acting for the third person outweighs the claim that
can be made against you in tort.
Pitts v. Hunt 1990

The next justification is that of “plaintiff the wrongdoer”. The basic norm of a claim in tort is that
the fact that you’re a wrongdoer doesn’t by itself nullify your claim. But when you have
contributed to the injury that you have suffered, then it can. To put this into an example, there’s
an 18 year old with a valid driving licence and a 2 wheeler. He has a 16 year old friend without a
licence. The former tells the latter “let’s go from A to B and I’ll let you ride the bike.” The 16 y/o
got them into an accident and the 16 y/o died. The 18 y/o survived, but with serious injuries. Can
he bring a suit against the 16 y/o’s estate for his injuries? No. Because the plaintiff’s actions
merged with the cause of the harm done.

The next justification is “exercise of common rights”. Sir thinks it's an “amazing defence” or
something. If you’re doing what the law allows you to do and someone suffers, it's none of your
concern. An example of this would be the thing where someone opens up a competing shop
opposite to yours and you suffer monetary damages. It is an extension of their right to trade.

The last justification is an inevitable accident. Something so unexpected happens, so outside the
scope of reason, that it is a valid excuse for the injury caused. We can look at this in two senses.
1. The act itself is one that relies on the agency of man. 2. There were natural elements which
were involved (vis major).

The first one is not a very effective justification anymore. Tort law doesn’t really consider the
directness of actions anymore, whether the act itself directly connects to the result. It now looks
at how a reasonable person would consider an act. Due to this, it’s very hard to prove that the
result was not reasonably foreseeable.

Death in connection with torts

Where there is a victim, and you can identify the tortfeasor, the fact that this claim arose and the
victim died, does the claim die with the victim?

Can those connected with the victim raise a claim? think about this. hmmmmmmmmmmmm
LECTURE – 8TH FEB
• No continuing claim of action
Some situations are so that continuing claims of action against the deceased is not reasonable
or futile on account of his death - If the provision of the compensation does not make sense,
and the right of the person exhausts with his death – there is no need of providing
compensation and cause of action exhaust.

• Continued claim of action – Dependance

When we bring in elements of dependence, it becomes a bit complicated. If there is an action
which was pending against the deceased, all these actions would subsist against the
representatives of the deceased.

It’s basically a policy consideration – who all can bring a suit on death of a person?
It wound be detrimental to open the floor to anyone, that’s why a set boundary is formed.
Boundary is understood in terms of Dependance.
Dependance is seen in terms of two major consideration –
a. Monetary dependence
b. Closeness in the relation in terms of emotional and mental proximity – a mother
feeling immense pain on loss of his child – isn’t monetary but is proximate
Claim of action based on dependance cannot be brought by any relation but has to be a
specific sort of relation.
Fatal Accidents Act 1855 – died on account of an act that was actionable –there would be an
action that would subsist, and it would pass on to a list of relations - husband, wife, parent
could be mother/father/grandfather-mother and child could be grandchildren as well.

Chain of Causation
If the injury can be closely connected to the cause of action, then the tort feasor can very well
be held liable.
If you can connect the cause to its effect without any impediment, then the tort feasor would
very well be held liable.
DISCHARGE OF TORTS
It means when a person by his own choice discharged the tort. This right is only provided to
the person against whom the wrong has been done.
Situation 1: A is the person against whom B does any act of Tort and if A, by his free consent
want to release B from the liability, he can do so.
Modes of discharge of liability in tort
1. Law of Limitation - If the suit is not within a stipulated period of limitation, then the
tort-feasor is discharged of his liability.
Statute of Limitation - Places a burden on the victim to bring a suit within a stipulated period
of time. The law prescribes limit within which an action must be brought for the wrong and if
this prescribed period is over, expired, the right of action is barred and remedy ceased to
operate law helps those only that is diligent about their right.
Limitation Period is not a blanket rule, if there are considerable justifications for not bringing
the suit within that period, it would be considered by the court.
2. Incomplete cause of action - When a claim for compensation is brought before the
court, the entire gamut of cause of actions must be brought before and pleaded.
X injury is suffered by a victim and he claims abc amount of compensation , he cannot come
later to the court and say that the compensation is under-estimated or that the cause of action
was incomplete. Once the matter is settled, there cannot be another claim of remedy on the
same action.
3. Accord and Satisfaction – Accord means an agreement whereby a person agrees to
accept some valuable consideration in lieu of the right of action that he has against the other.
Satisfaction means actual payment of the amount of consideration so agreed to when there is
an agreement and it is satisfied by its executors, the agreement is termed as accord and
satisfaction and it discharges the tort.
If I am an injured party and there is a tortfeasor, and I enter into an agreement with the
tortfeasor – there is a valuable consideration – satisfaction for both the sides and the liability
is discharged by ways of a consideration based agreement.
4. Release – This sort of discharge is a simple discharge and not with any valuable
consideration [like the 3rd mode of discharge]. It may be affected by personal and empathetic
relations between the two parties where they may not want a consideration for discharge.
Example – in a case between family members or friends
5. Acquiescence- It works on the basis of construct of conduct which brings a sense of
feeling within the victim that no cause of action would lie.

6. Waiver by election – goods are provided by mistake and he goes on to sell it

Civil action can be brought against him in two ways –
a. Contract – the monetary amount of goods can be recovered
b. Tort – damages can be received
Where a party choses to elect one mode of recovery or remedy whether contract or tort, he
automatically discharges his other mode of recovery or remedy. It isn’t a complete discharge
but is made to impose a responsibility on the claimant to completely be responsible for his
claim.

9th Feb
MODULE 4
DAMGES AND OTHER REMEDIES
Damages – unliquidated – compensation paid as a consequence of determination by court –
for the damage has resulted
Nature of damage –
Breach of duty, legal right violated leading to injury not necessarily physical – injury is
focussed upon while taking about damage – violation of legal right gives rise of cause of
action and this leads to arising a claim and if it will succeed or not will depend on justification
by tortfeasor
Establishment of link between injury and action of tortfeasor – to construct damage – main
portion of construct in determining damage and linking it to tortfeasor
Way to construct this bridge has been different and evolved –
1. But-for test = but for the action of defendant, the consequence on victim would not have
resulted.
Robinson v post office 1974
There is a technician in a post-office and in course of his duty while descending from wagon
used for delivery of posts – wagon not cleaned properly – steps of wagon had oil on them due
to containers in wagon – he slipped and injured his chin – went to doctor for anti-tetanus
serum shot and doctor gave entire dose in one shot but the general method is to give test shot
small portion first and after 30 minutes it is seen if shot is shoeing allergic reaction and if not
then actual shot is given but doctor here just gave in one go – no immediate effects post this
shot but 9 days later, he develop encephalitis and partial permanent disability – one of the rare
effect of tetanus shot is developing this condition which ahs been known in medical field, it
was also known that patients who received such shots before, there was higher chance they
might get condition in second shot if second shot given after a small time gap but not after a
substantial large gap.
Claim: Mr Robinson brought a claim in the tort of negligence against both the Post Office and
the hospital. The Post Office accepted liability for the small damages which resulted from the
fall. However, they disputed liability for damages for contracting encephalitis, and the
resulting brain damage. Doctors say we follow medical practice- They did so on the basis it
was not reasonably foreseeable that Mr Robinson would suffer such injuries as a result of the
medical treatment. Even if waiting for half an hour – still would have showed no symptoms
Has negligence led to damage? If not, then not possible to reasonably hold them liable
Negligence on part of post office – ready to pay for chin injury
Held: whether the fact that negligence actually led to encephalitis? No, consequence of shot
and not negligence, not have happened had he not slipped – whatever happened after slipping
was foreseeable – so, tortfeasor is post-office
A person slips for oil on steps – can be anybody else and hurts himself on metal – foreseeable
step is getting tetanus shot and way shot affects will be different in different circumstances –
everyone face different condition – tortfeasor has to compensate the victim in the situation he
found his victim – so, post office liable – test of foreseeability and point of remoteness was
struck on anvil of foreseeability – what happens post the shot, post-office will be liable –
negligence was there on part of doctor but that did not lead to encephalitis, the fact that he got
the shot mattered which was because of negligence of post-office – there is an act by doctor
and can be connected but not concerned about act but the consequence which is attributable to
post-office
The Court of Appeal held the damage was not too remote and therefore the Post Office was
liable in full. In contrast, the hospital was not held liable.

Reasoning: Orr LJ, giving the judgement for the Court, started by considering the liability of
the hospital. The Court held they were not liable in administering the injection, and, because it
took a few days for Mr Robinson to show symptoms, failing to administer a small test would
not have stopped the full injection and so did not cause the loss.
The Court concluded there was no novus actus interveniens because the doctors had not been
negligent. Therefore, the remaining question regarding liability of the Post Office was whether
the loss was too remote.
As in Smith v Leech Brain & Co Ltd, Orr LJ decided the case based on the principle that a
defendant must take his victim as he finds him. He concluded that if a claimant suffers greater
harm than is reasonably foreseeable, the defendant remains liable for the full harm so long as
the type of harm was foreseeable. This was further supported by dicta from Lord Reid in
Hughes v Lord Advocate.
In these circumstances, it did not matter that it was not reasonably foreseeable that Mr
Robinson would suffer this specific rare illness from the tetanus injection. Rather, the relevant
question was whether this type of harm was foreseeable.
The Court of Appeal upheld the trial judge’s decision that the harm was reasonably
foreseeable. It was sufficient for liability, they said, that it was reasonably foreseeable the
victim would require medical treatment, and there may be complications with this (such as an
allergic reaction). Furthermore, given the type of work it was also reasonably foreseeable that
the victim would require a tetanus injection.
2. The test of foreseeability – covered later on
3. Test of direct consequences – if you could attribute negligence, you could hold liable
for all consequences whether foreseeable or not
Smith v. SW Rly 1870
Facts: Workmen, employed by the defendant railway company to cut the grass and trim
hedges bordering the railway, placed the trimmings in heaps near the line, and allowed them
to remain there for fourteen days, during very hot weather in the month of August. Fire from a
passing engine ignited one of these heaps, and burned the hedge, and was carried by a high
wind across a stubblefield and a public road, and burned the plaintiff’s goods in a cottage
about 200 yards away. The question was whether there was evidence of negligence to go
before the jury. No one argued that the railway company was strictly liable.
There is negligence and common understanding behind leaving heaps in hot weather – will
lead to fire
If you can attribute fault – then consequence of tort foreseeable or not, can be held liable –
establishing link – railroad agency was held liable as fault was established. But this principle
seems faulty
Held: Bovill CJ said: ‘I agree that the mere circumstance of the fire being caused by an engine
of the company, is not enough to give a cause of action against them; but the plaintiff must
shew some breach of duty on their part which occasioned the injury he complains of.’

10th Feb
Test of Foreseeability
In Re Polemis & Furness 1921
Employees of the defendant had been loading cargo into the underhold of a ship when they
negligently dropped a large plank of wood. As it fell, the wood knocked against something
else, which created a spark which served to ignite the surrounding petrol fumes, ultimately
resulting in the substantial destruction of the ship. At first instance (arbitration), it was held
that the reasonable unforeseeability of the outcome meant that the defendant was not liable for
the cost of the ship.
Issues: Can a defendant be held liable for outcome of events entirely caused by their (or their
agents’) actions, but which could not have been foreseen by either the party in question or any
other reasonable party.

Decision / Outcome: sThe Court of Appeal adopted a strict liability approach to causation and
assessing liability here and subsequently held that the defendant was liable for all of the
consequences that had resulted from their negligent actions. The fact that the extent of these
consequences was neither subjectively appreciated nor objectively foreseeable was deemed
irrelevant to such a determination. Notably, this authority would go on to be replaced in the
case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon
Mound) (No. 1) [1961] AC 388, however it has never been officially overturned in English
law and theoretically remains ‘good case law’, despite its lack of application.

Shift from test of directness to test of forseeability

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound)
(No. 1) [1961] AC 388
Facts: The crew members of the Overseas Tankship (UK) Ltd were working on a ship, when
they failed to turn off one of the furnace taps. This caused oil to leak from the ship into the
Sydney Harbour. Morts Dock & Engineering Co (The Wagon Mound) owned the wharf,
which they used to perform repairs on other ships. The leaking oil on the water surface drifted
to the site where Morts were welding metal. A supervisor enquired to find out whether the oil
was flammable, which he was assured that it was not. However, a spark from welding and
mixed with debris, caught fire from the spilt oil and this caused a fire to spread rapidly. This
caused significant damage to Mort’s wharf.
Issues: The issue in this case was whether the crew could be liable for the damage to the
wharf that was caused by the fire. In addition, would this also be the case even if it was
unforeseeable, but a result of a negligent act.
Decision/Outcome: The court held that Overseas Tankship (UK) Ltd could not be held liable
to pay compensation for the damage to the wharf. This case disapproved the direct
consequence test in Re Polemis and established the test of remoteness of damage. This asks
whether the damage would be reasonably foreseeable. In this case, the damage caused to the
wharf by the fire and the furnace oil being set alight could not be foreseen by a reasonable
person.
The natural consequences rule leads to instances where a negligent party is liable for both the
direct trivial foreseeable damage and all unforeseeable and grave consequences too. This takes
the law beyond the principle that a man should be liable for the probable consequences of his
actions. The prior rule has led to much confusion and inconsistent results in the law. In some
cases, the negligent actor is held responsible for results that might be natural or probable and
are therefore deemed to be foreseeable to the reasonable man, when they are in fact not
foreseeable. The Defendant is liable for the fire if the injury by fire is a foreseeable
consequence of their negligence.

Eggshell skull Rule

A tortfeasor doesn’t choose his victim. This rule holds that a tortfeasor is liable for all
consequences resulting from their tortious (usually negligent) activities leading to an injury to
another person, even if the victim suffers an unusually high level of damage (e.g. due to a
pre-existing vulnerability or medical condition).

Smith v. Leech Brain

Due to the negligence of the defendants, the plaintiff workman suffered a burn injury on his
lip, resulting in the development of cancer. A premalignant condition might have led to cancer
subsequently, in any case. However, the defendants were held liable for his death. A tortfeasor
takes his victims as he finds him. The plaintiff’s eggshell skull cannot be a defence. Thus, the
test of foreseeability does not apply in such cases.
Held: It was held that the defendants had been negligent and were therefore liable for damages
to the complainant.
The Court found that firstly, the risk of the molten metal injuring the workman unless
protected properly was reasonably foreseeable by the employers. The were in breach of their
duty for not providing adequate protection and were liable in negligence at common law.
Secondly, Lord Parker argued that The Wagon Mound decision did not alter the existing rule
that the wrongdoer must ‘take his victim as he finds him’ (‘thin skull’ or ‘egg-shell skull
rule’). Therefore, it was not relevant whether the subsequent death was reasonably
foreseeable, it was enough that the burn was in reasonable foreseeability. Death was merely an
extension of it.
 Lord Parker stated: If a man is negligently run over... it is no answer to the sufferer’s claim for
damages that he would have suffered less injury... if he had not had an unusually thin skull or
an unusually weak heart
The ratio decidendi is that a tortfeasor is liable for negligent damage, even when the claimant
had a predisposition that made that damage more severe than it otherwise would have been.

Novus Actus Interveniens

When the chain of causation set into motion by the defendant’s act is snapped, the damage
resulting is said to be too remote. The chain of causation may be snapped either by human
intervention or natural event. Human action per se does not break the chain of causation. The
chain is said to be broken when the intervening act was unreasonable or extrinsic in nature.

11th February
Novus Actus Interveniens
When the chain of causation set into motion by the defendant’s act is snapped, the damage
resulting is said to be too remote. The chain of causation may be snapped either by human
intervention or natural event. Human action per se does not break the chain of causation. The
chain is said to be broken when the intervening act was unreasonable or extrinsic in nature.
Now imagine a situation that the doctor gave a test dose and the victim showed allergies but
still the doctor goes ahead and delivers the full dose.This would be considered a novus actus.
When we consider an intervening act, we must consider that it can result from a human
agency as well as from a natural entity. From Robinson v. Post Office, we understand that
human agency per se is not intervening. What makes it intervening is that the act is
unwarranted, unreasonable and extraneous. If these factors are satisfied, the intervening act
can break the chain of causation.
Types of circumstances
1. Novus actis does not necessarily mean that it has to be done by a third person and this could
be done even by the victim himself. If the victim takes an unreasonable step after being
injured then the liability of the hurt caused because of the novus actus would not fall on the
tortfeasor. This new act will be an intervening act, however reasonable follow up actions do
not act as novus actus
2. Third person: if a third person is acting reasonably given the circumstances then his act will
not be intervening but if it is unreasonable then it would break chain of causation.

Mckew V Holland
Facts: In the course of his employment, the complainant had suffered injuries, which meant
his left leg could give way underneath him. A few days after the incident and while in his
recovery, the complainant tried to come down a set of steep steps, which did not have a
handrail. His injured leg gave way beneath him and he attempted to jump the remaining 10
steps. However, he fell down the stairs and suffered injury. He severely fractured his ankle and
was left with a disability.
Issues: While the defendant accepted liability for the leg injury resulting from the accident at
work, the issue in this case concerned the ankle fracture sustained in the second incident. The
defendant disputed liability for the act by the complainant. The court must answer whether
this was a new intervening act that would break the chain of causation and whether damages
were recoverable for the complainant’s ankle injury.
While the employer was negligent and liable for the initial injury, the new action by the
complainant was a novus actus interveniens that broke the chain of causation. The
complainant had taken an unreasonable risk that could not be foreseen and the defendant
could not be liable for the ankle injury. Lord Reid made it clear that an injured person should
act reasonably and carefully in his recovery. Trying to descend steep steps unaided with the
possible of his leg giving way was an example of unreasonable behaviour.
Natural Acts under Novus Actus Intervenis
Illustration- Concert happening on a faulty stage- it rains when it wasn’t expected it to rain-
performer gets injured due to the faulty stage but much more as a result of the unexpected rain

Facts - A person was on his wagon which was being pulled by two horses. Chained one wheel
of the wagon to a pole outside the store where he was entering to pick up a receipt. This area
was frequented by children. The chain of the wagon was found broken, the horses bolted in
the direction of the police station. A policeman saw the wagon which was hurtling towards the
people. Risking injury to himself, he rushes and catches hold of the wagon and brings it to a
stop. He suffers injury.

Issue- Can this be considered a mere act of volenti non fit injuria? How can the tortfeasor be
liable here if we prove he is negligent?

Prove negligence- This area is frequented by children. This should have been taken into
context by the driver of the wagon, it was foreseeable that if it is left unattended it might cause
injury.

It is not a proper case of novus actus. This is a case applicable to VNFI. If this case is taken as
an exception, it can be for both.

The policy consideration cannot be to deter the rescuer by saying you have done it voluntarily.
A person who takes reasonable action to protect any person, it cannot be considered as VNFI
or Novus Actus which doesn't hold the tortfeasor liable.

There are four types of damages.

Contemptuous damages- Awarded by the court, censoring the plaintiff for wanting to establish
his right. This is done in small cases where litigation should not be preferred and it should be
dealt with one to one communication. The damage will be very small which represents courts
contempt. Awarded in trivial matters and reflect a censure on plaintiff for raising the issue.
Nominal damages- They are distinct not in the sense of quantum but nature of censure. The
court is aware of violation of right which must have been brought to the court and the primary
source of remedy is not damages but maybe injunction. So small damages are awarded along
with it.
Ordinary damages- These are a form of compensatory damages and are primary form of relief
which are given in
When we refer to unliquidated damages, it is a direct reference to ordinary damages.
Aggravated damages- If a person were to file a suit of malicious act, aggravated damage can
be provided by the court. This is a subset of ordinary damage. If there is a motive or malice,
the court can award aggravated damages.

Exemplary- deterrence against the conduct of the defendant. A distinction between

contemptuous and exemplary- the censure is on plaintiff and defendant respectively. There is
compensatory damages which the plaintiff deserve and the act is of such nature that court
believes that there is a need for a message for future actions, it can award exemplary damage.

Special damages- It is a term used in a specific concept of cases of public nuisance as in these
cases an action which is a reasonable action, which is being done with statutory backing for
utilitarian purpose, the general public can't claim an action for nuisance because it is done for
them. If an individual had to claim damages in such a scenario then he would have to prove
something extra apart from what is being felt by the community by stating that he has suffered
special damages. A subset of ordinary damages and it must be seen in context.

Nervous shock- If someone I hold clearly is injured in an accident, it might cause psychiatric
illness and the person should be compensated.

Eg. My wife is injured. It is quite natural that I will suffer severe nervous shock.

If an injury is sustained by the victim, the people close to him also get affected because of the
action of the tortfeasor.

The question is - what about other relations like friends, besties, s/os- here the policy begins to
shake. The tortfeasor cannot be responsible for all these.

There is a person who is 17 year old and driving a car and on yhe passenger seat his father is
sitting and behind two sisters who are younger.
On the road at 4 pm there was an accident where a lorry hit a car and the people are seriously
injured. The lorry driver is injured. The people are taken to the hospital and severely injured.
The driver is not stable mentally and physically. One of the younger sibling has died. At 6
P.M. a family member goes and speaks with the mother about the incident. She gets into the
car with him and goes to the hospital. She is met by the doctor and doctor tells her not to be
frightened by what she sees. She sees her son who is injured and husband and child who are
badly shaken and the husband limbs towards her and embraces her. The mother suffers from
psychiatric illness and is unable to function properly.

Issue- Are the lorry driver accountable in providing damages to the woman for her nervous
shock.
The Court of Appeal rejected McLoughlin's appeal on grounds of public policy. The Court
held the injury was foreseeable, and a duty of care was owed to McLoughlin. However, they
did not allow McLoughlin to recover damages. Stephenson L.J. held that the consequence of
breach should be limited as a matter of policy. Griffiths L.J. held that the defendants had a
limited duty of care (e.g. only towards persons near the road who were directly affected), and
that foreseeable consequences did not automatically impose a duty of care.

The Court also held that only legislature should extend the scope of libility. it seems like yahi
hai

15th February

continuation of mclough v o brian

There are 2 types of victims
Primary victim- it doesn't matter if you are related to the injured party or not. Merely if you
are in the scene of the accident or so near to it that you are in a position to be physically
injured but you suffer a psychiatric illness. Even if it is not foreseeable, it will come within the
ambit of damages.
Secondary victim- They are those people who are not within the range of foreseeable physical
injury but who suffer psychiatric illness. To claim damages, there is this control mechanism
test. They have to prove that they have a close relationship. Unless they do that, they will not
be able to claim damages. A limitation to that is directly coming from this case. If you are not
at the scene, it does not matter even if you are a close relative.
The control mechanism was satisfied in this case for the secondary victim, and damages were
awarded.
The Ratio of the Case
The House of Lords, in determining the ratio of the case said that the duty of the defendant is
extended to those who came immediately after the accident, even if they did not witness the
incident. The house of Lord determined the circumstances in which the plaintiff would
succeed.
Damages are not awarded for grief and loss. However, it shall be awarded for nervous shock
caused by negligence without showing the direct impact.
The plaintiff may also recover damages for a nervous shock if the injury caused to a person is
their near relative.
Three classes of persons whose claims are to be recognized –
The means by which the shock was caused and the proximity of the person to the accident.
A shock in its nature is capable of affecting a wide range of people, an emphasis has to be
given only to a certain extent. For instance, a close relative of the victim.
As regards proximity, it must both in time and space. The time shall be immediate or
“immediate aftermath” of the incident. Space means in and around the place of incident. The
shock shall come through sight or hearing about the event or of its immediate aftermath.
Judgment: The trial Judge held in favor of McLoughlin and said the defendants owed a duty
of care to the claimant.
The Court of Appeal Judgement held the psychiatric illness was foreseeable and a duty of care
was owed to McLoughlin. However, Mcloughlin was not allowed to recover damages.
Lord Wilberforce held that ‘one who comes very soon upon the scene, should not be excluded
under the “aftermath doctrine”. Normally a parent or a spouse could be regarded as being
within the scope of foresight and duty. The class of persons who could be considered
proximate to the event are those who come within the immediate aftermath of the event. The
appeal was allowed and the claimant was entitled to receive compensation for psychiatric
illness.’
One of the biggest sporting disasters in the world- Hillsborough disaster in the UK- 1989
During an FA cup final between Liverpool and Nottingham Forest at Hillsborough stadium,
South Yorkshire, the place where spectators could sit was split into two ends. One half entry
was restricted to Liverpool fans while the other half was restricted to the other team’s fans.
The Liverpool end had standing lanes where fans had to stand to watch the match. There was
a lot of overcrowding to the extent that people kept piling inside the stadium. In order to ease
the crowding, the chief constable took the decision of opening one of the exits without
actually securing the position of not allowing entry. When he opened that exit, more people
entered inside. The already surplus crowd was worsening. Some of them climbed the
barricade and dropped to the field. But people got crushed. There were a total of 96 deaths and
600-700 people were injured. This incident led to a lot of development in the legal sphere of
negligence.
2 cases which arose out of the incident. Groundbreaking case with respect to nervous shock.
Alcock v. Chief Constable of South Yorkshire Police- 1992
It was streaming and people were watching it on television. These victims suffered emotional
distress. They were close relatives of the people who died. Though they were not at the scene
of the disaster and its aftermath, they witnessed it which caused them mental trauma.
The court made a distinction between the 2 types of victims- primary and secondary victims.
For the secondary victims, the court establishes a test called the secondary mechanism test. In
order for a secondary victim to successfully claim damages, they would have to pass the test
Primary victims are those who are participants in the event or in other words, are in the actual
area of danger of receiving foreseeable, personal injury but suffer only a recognisable
psychiatric illness and escape personal injury by chance of good fortune. Such victims are
entitled to compensation even where psychiatric illness is not foreseeable.
Secondary victims are those who are not participants in the event or in other words, are not in
the area of danger of receiving foreseeable personal injury but yet suffer recognisable
psychiatric illness.
The secondary victim can be allowed compensation if the following conditions forming the
control mechanism test are satisfied:
1. The plaintiff must have close ties of love and affection with the main victim. Such ties may
be presumed in such cases with respect to parent, spouse and child but must otherwise, be
established by evidence. (left out siblings)
2. The plaintiff must have been present at the accident or its immediate aftermath.
3. The psychiatric injury must have been caused by direct perception of the accident or its
immediate aftermath and not upon hearing about it from someone else. If these can be
established, the victim can claim compensation. Still ongoing. Has not reached logical
conclusion in courts

White v Chief Constable of South Yorkshire 1999

Facts: The claimants (C) were all police officers who had been on duty within Hillsborough
Stadium during the eponymous disaster. C brought an action in negligence (and/or breach of
statutory duty) against their employer, the Chief Constable of South Yorkshire Police (D), for
the psychiatric harm they had suffered as a result of witnessing the tragedy first-hand. It was
not disputed that D was negligent or, indeed, that this had caused nervous shock to C. The
Court of Appeal had previously found in favour of C and D appealed to the House of Lords.

Issues: This case raised two principal questions. Firstly, it fell to be determined whether an
employer owed a duty of care to protect their employees from psychiatric injuries they may
incur in the course of their employment. Secondly, C argued that they fell within the ambit of
‘primary’ victims, and should thus be permitted to succeed with an ordinary claim in
negligence. The House of Lord were thus called upon to revisit the distinction between
primary and secondary victims set out in Alcock v Chief Constable of South Yorkshire
([1992] 1 AC 310).

Decision: D was under a duty to take reasonable steps to protect his employees from the risk
of physical harm, but there was no extension of this duty to protect C from psychiatric harm
when they were not exposed to any risk of physical injury. Thus, there could be no duty of
care owed to C for purely psychiatric harm, as they were not at any point in any physical
danger. Moreover, a rescuer in relation to whom physical injury was not reasonably
foreseeable could not recover damages for psychiatric injury sustained by witnessing, or
participating in the aftermath of, an accident which had caused death or injury to others; such
rescuers were to be categorised as secondary victims, and so would have to meet the
conditions specified by Lord Oliver in Alcock

Lisa Sheehan v Irish Bus and Vincent Dower 2020

There is a lady who is a hairdresser and she is travelling from point A to B and on her way she
witnesses an accident. Something from that accident fell on her vehicle and she stepped out to
see and it was a portion of someone's body and she initially thought it was a dead child and
then realised it was the deceased driver. She engaged in active rescue and tried to find other
people injured. She suffered from PTSD and had to quit her job.

Issue- Will her claim of compensation for Nervous shock be sustained?

The defendant said that she cannot claim to be the victim as the defendant itself is the primary
victim and there is no close proximity and neither was she at the point of the accident.

The court said that she was at that site and because she was engaged in active rescue, she
cannot be considered as a secondary victim but a primary victim.

He was of the view that Ms Sheehan was in fact a primary victim of the accident as she was a
motorist within the radius of flying debris from the collision and therefore in the area of risk
of foreseeable physical injury

The second issue which the court had to consider was the argument put forward by the
defendants’ that Ms Sheehan’s claim for damages must fail because, as a matter of policy,
there is no liability in negligence where the primary victim was the negligent defendant and
the shock to the plaintiff arose from witnessing the defendant’s self-inflicted injury.

Non pecuniary: Pain and suffering, Loss of amenities, Loss of expectation of life
Pecuniary: Consequential expenses, Cost of care, Loss of earnings

16-18th february refer to word docs

NON PECUNIARY DAMAGES

Distinction made between pain and suffering, loss of amenities, reputation.

1. Pain and suffering

Usually confused to mean medical expenses. Medical expenses, paying that money—that’s
pecuniary. Pain and suffering is very literal it refers to the pain and suffering u had to go
through because of the tort feasors action. The threshold of payment under this head will
change with the amount of pain you are in. More pain-more compensation

If you are incapable of feeling pain you will not get compensated under this.
- Make distinction between compensation of pain and compensation of medical
expenses
- There should be pain , if u cant feel, dead-cant ask

2. Loss of amenities
Loss of ordinary experiences and enjoyment of life, deprivation major. In my ordinary ocurse
of things, when tortfeasor interrupted my manner of living I used to trip, tennis, gala time.
Cant do anything. Loss of amenities refers to disruption. Cant do these things, that deprivation
gets covered under loss of amenities. Coma person can claim damages under loss of
amenities. Tortfeasor has taken away the manner of existence. Just like pain and suffering will
also differ in threshold depending on change in the maount
of injury suffered.

Higher the threshold more the compensation.

Amputation: desk job and athlete the loss is different and comp would differ

3. Loss of expectation of life

Means that prior to me during that injury I would have had a longer period of existence. Now
the level of my expectancy has reduced considerably. Like outher heads this is something
which has to be proved. You prove it through professional medical testimonials that- The
normal expectation of life usually shortens due to that injury.

LOSS OF ESTATE --TOGETHER 3 Pain and suffering+ loss of amenities + loss of

expectation of life = loss of estate

PECUNIARY DAMAGES

a. Consequential expenses
b. Cost of care
c. Loss of earnings

All these three heads deal w the expense that youre incurring and the income that is lost.

a. Consequential expenses- immediate aftermath of the injury will take into context
certain objective material expenses. The expenses that u infer on account of the injury
suffered- the immediate consequential expenses. Medical expenses. Expenses for medicines,
equipment needed, fees for dr. hospital.
b. Cost of care – those which you can foresee. A more futuristic hypothetical expense
where youre considering the change of lifestyle and what sort of expense will now be incurred
in order to take care of your health. Ex. Nurse required, wheelchair etc.
c. Loss of earnings- The fact that I was earning a certain amount of money, chances are
that because of the injury I may not be able to continue that work. Even if continue, the nature
of work I carry out reduced substantially. It has hampered my progress I nthat partocular
employment. So it will have to be considered. Whatever claim youre making should be made
in that petition itself. Once you recover damage for that cause of action after that you can’t
claim anything. Anything has to be mentioned in the very same petition.

National insurance co. ltd. vs. pranay sethi sc 2017

Constructing damages, Tiers mechanism where the tiers are placed specifically by petitioner’s
advocate

1. How the sc has laid out certain parameters for judges and lawyers to make this
quantum of damages objectively possible. One thing to say that they are present in tiers model
and another thing to assign parameters.

Calculation
Described by the sc in context of a person who is no more on acc of injury suffered by him.
The manner of treatment meted by common law has changed in terms of dead persons. We are
keeping in context, dependence, age, employment type, future prospects, ideal multiplier for
the purpose of identification.

First is in terms of future prospects

1. While determining the income, an addition of 50% of actual salary to the income of
the deceased towards future prospects, where the deceased had a permanent job and was
below the age of 40 years, should be made. The addition should be 30%, if the age of the
deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60
years, the addition should be 15%. Actual salary should be read as actual salary less tax.

2. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the
established income should be the warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where
the deceased was between the age of 50 to 60 years should be regarded as the necessary
method of computation. The established income means the income minus the tax component.

a. Future prospects- further divided into 2

- Permanent job- if a person has a perm job, if his/her age is below 40 then future
prospects of such person is 50% of his existing salary. If his age is between 40-50 then future
prospects are calc as 30%. If age is between 50-60 then future prospects will be 15%.
- Self employed/ fixed salary (contractual employment) - if person below the age of 40
then future prospects 40%. If 40-50 then 25%. If 50-60 then future prospects are calc as 10%.

If the salary of a person is 100 rs per month then w future prospects itll be 130,150 115 etc. in
context of perm job or contractual job.

Actual income/ salary- income without tax, money you get in hand after payment of tax/
When calculated annually, add future prospects

b. Marriage- why are we considering marriage is because. Marriage would mean either
married or not married. If you are earning a certain amount of money then u will be spending
it on yourself. In the second segment it will be pertinent in determining the personal and living
expenses of that individual.

the deduction towards personal and living expenses of the deceased, should be one-third
(1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the
number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of
dependent family members exceeds six.

Bachelor

If a person’s a bachelor, 50% of the salary along w the future prospect is considered as a
person’s living expenses. The case w bachelors is that the claimant ordinarily in such cases be
parents. In context of parents, ordinarily if a claimant is a father/ sibling then in such cases it
will have to be proved that either they arents employed themselves. If they are then its within
the ambit of their salaries If dependent is
mother then 1/3rd of the amount.
^If unemployed dependents-parents then 1/3rd

Where the deceased was a bachelor and the claimants are the parents, the deduction follows a
different principle. In regard to bachelors, normally, 50% is deducted as personal and living
expenses, because it is assumed that a bachelor would tend to spend more on himself. Even
otherwise, there is also the possibility of his getting married in a short time, in which event the
contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to
evidence to the contrary, the father is likely to have his own income and will not be considered
as a dependant and the mother alone will be considered as a dependant. In the absence of
evidence to the contrary, brothers and sisters will not be considered as dependants, because
they will either be independent and earning, or married, or be dependent on the father.

Thus even if the deceased is survived by parents and siblings, only the mother would be
considered to be a dependant, and 50% would be treated as the personal and living expenses
of the bachelor and 50% as the contribution to the family. However, where the family of the
bachelor is large and dependent on the income of the deceased, as in a case where he has a
widowed mother and large number of younger non- earning sisters or brothers, his personal
and living expenses may be restricted to one-third and contribution to the family will be taken
as two-third.”

Multiplier

operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years); reduced by one
unit for every five years, that is, M-17 for 26 to 30 years, M- 16 for 31 to 35 years, M-15 for
36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two
units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61
to 65 years and M-5 for 66 to 70 years.

The Amount we get now, the remainder amount has to be miultiplied w a certain no. of years.
If the age of the individual was between 15-25 then multiplier will be 18. If the individual was
in the age of 26-30 then the multiplier would be 30.

Rationale- younger person lives more than older, not a perfect calculation, no. considered
reasonable expectation deceased would have lived and provided for family

15-25 18
26-30 30/13
.
.
51-55 11
56-60 9
61-65 7
66-70 5
Objective payment: that needs to be met under certain heads.
The first head is loss of estate. Diff between loss to estate and loss of estate. Loss to estate is
non pecuniary loss, amenities etc factors.
>Under loss of estate were looking at a set sum of 15000 rs.
>Loss of consortium as 40000 rs. It has to be calculated individually. If I have 2 children, 3
parents, each person individually gets 40000.
> funeral expenses set at 15000 rs

It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of
consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The principle of revisiting the said heads is an acceptable principle. But the
revisit should not be fact-centric or quantum-centric. We think that it would be condign that
the amount that we have quantified should be enhanced on percentage basis in every three
years and the enhancement should be at the rate of 10% in a span of three years

LOSS OF ESTATE --TOGETHER 3 Pain and suffering+ loss of amenities + loss of

expectation of life = loss of estate

Loss of consortium: Refers to certain relationship where the person gets injured usually in the
context where there is death in such case arises the question of loss of consortium. I have lost
my companionship. If parent died then can claim loss of mentorship. If a parent is in
vegetative state etc. this will exist between, sibling, parent and child, child to parent, spouse.
Another form of non pecuniary loss called loss of consortium. Broad heads where there can be
claim of non pecuniary.

FINAL FORMULA
1. From given salary, calculate actual salary if possible (deduction of tax)
2. Caculate Annual salary from Actual salary (X)
3. Add Future Prospects (dependent on age and nature of employment) [X+ FP]
4. Deduct Personal Expenses (P.E. dependents on number of dependents and marriage
status) from
[X+FP.- PE]= Z (annual dependency)
5. Multiply Annual Dependency by Multiplier (determined by age bracket) [ZxM]= T
(pecuniary damages component)
6. Add Loss of Consortium (40,000 per dependent) , Loss of estate (15,000) and Funeral
Expenses (15,000) to the final amount, upscale each initial value by 10% if 3 years have
passed [ T+LOC+LOE+ FE]= final damages (non pecuniary damages+ funeral expense)

Practice Problem
Same discussion as before New problem

Q) X is 47 years old. He works as a sternographer for a company.

He receives a fix salary of 29000 rupees per month. He has a wife (aged 45 years) who is a
homemaker and 2 daughters aged 21 and 15 respectively. The elder daughter is studying in a
dental college full-time without any part-time employment and the younger daughter is in
school. In March 2021, X met with an accident and died. Calculate the damages.

Mr Justice Keane felt that this position was contrary to the Irish Constitution and would be
capable of causing unfairness and injustice in our legal system.

Mr Justice Keane concluded that Ms Sheehan had satisfied each of the elements of the test to
establish liability for negligently inflicted psychiatric injury.