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Torts Notes - LSK-1 - Bhnchd maa k lawda
BA LLB (HONS.)
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LAW OF TORTS
by R. Bangia
Chapter 2:
Difference between Contributory Negligence and - Chapter 1:
- The Nature Of A Tort
- Essentials of a Tort - Mental Element in Tortious Liability - Malice in Law and Malice in Fact - General Defences - Volenti Non Fit Injuria - Inevitable Accident - Mistake - Necessity - Private Defence - Act of God - Plaintiff, The Wrongdoer - Statutory Authority
- Capacity Chapter 3:
- Act of State
- Corporations
- Minor - Independent and Joint Tortfeasors
- Husband and Wife - Parental or Quasi-Parental Authority
- Judicial and Quasi-Judicial Authority
- Vicarious Liability Chapter 4:
- Principal on which Various Liability is Based
- Relationship Governed by Vicarious Liability
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- Medical & Professional Negligence Chapter 12:
- Medical Negligence
- Essentials of Medical Negligence
- Professional Negligence
- Contributory & Composite Negligence Chapter 13:
- Contributory Negligence
- Principles of Contributory Negligence
- Composite Negligence - Composite Negligence
- Liability For Dangerous Premises Chapter 14:
- Obligation towards Lawful Visitors
- Obligation towards Trespassers
- Obligation towards Children
- Liability For Dangerous Chattels Chapter 15:
- Liability towards the Immediate Transferee
- Liability towards the Ultimate Transferee
- Unfair Contract Terms Act,
- Consumer Safety Act,
- Rule of Strict and Absolute liability Chapter 16:
- Strict Liability
- Essential elements of Strict Liability
- Exceptions under Strict Liability
- Rule of Absolute Liability
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####### Chapter 1:
Liability for Animals 90 The Scienter Rule 91 Cattle Trespass 96 Ordinary Liability in Tort 98
Chapter 18: Trespass to Land 99 License 101 Remedies 102
Chapter 19: Interference with Contract or Business 105 Inducing breach of contract 105 Intimidation 107 Conspiracy 109 Malicious Falsehood 110 Passing off 112
Chapter 20: Liability For Misstatements 115 Fraud Or Deceit 115 Negligent Misstatements 120 Innocent Misrepresentations 122
Chapter 21: Death in Relation to Tort 123 Effects of death on a Subsisting cause of Action 123 Exceptions under the maxim of “actio personalis moritur cum persona” 124 Shortening of Life Expectancy 125 Extent of Actionability in Tort 127 Compensation under Various Statutes 128
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THE NATURE OF TORT
Tort is derived from the Latin word tortum, meaning ‘twisted’ or ‘crooked’, it is of French origin. The term is found in common law systems for a civilly actionable harm or wrong. In English it means wrong, Torts is defined as violation of civil rights, or legal rights vested in another person. The law imposes a duty on every members of the society to respect the legal rights vested in the members of the society, and whoever obligates or refrain from following law is said to have done the wrongful act. Tort is a breach of duty recognized under the law of torts, for example a person trespass another person land without the permission of owner, and he owes a duty towards the owner of land.
Some of the important definitions given by various thinkers are- According to Winfield, tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for liquidated damages. Sir John Salmond defined tort as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligations.
Both definitions give a simple idea that tort is a civil wrong, which can be redressed by an action for unliquidated damages, means damages are not predetermined, and they are decided by courts. Law of tort is a branch of obligation, which tries to refrain a person from committing any wrong act or harm to anyone, and if harm is done, the wrongdoer is to compensate or perform the obligation independently under force of general law.
We define tort as a civil wrong which is redressable by an 08 action for unliquidated damages, and which is other than a breach of trust and contract. Tort belongs to category of civil wrongs, in which plaintiff institutes the civil proceedings against the wrongdoer i. defendant. Plaintiff gets remedy in the form of damages by the defendant, damages in the tort are unliquidated, which enables us to distinguish tort from other civil wrongs like breach of trust or contract where damages are liquidated means previously determined or agreed as in the case of contract where amount of compensation is specified.
Tort nature can be understood by distinguishing between other wrongs both civil (i. breach of trust and contract) and criminal wrongs. Firstly we will deal with civil wrongs i. breach of trust and contract and distinguish with torts, a breach of contract results from the breach of duty undertaken by parties themselves and they have freely consented for the contract and violation of that duty results in the breach of contract, while on the other hand tort is violation of civil rights, that is imposed by law.
For example, I have a duty not to trespass on anyone’s land without the permission of owner, I have a duty not to defame anyone, to not commit nuisance. I have not voluntarily undertaken any of these duties, but these are imposed by law and if any member of the society breaches the duty then he is said to commit a tort. Duties imposed under law are towards the world at large, whereas in contract duties are specifically towards an individual.
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in doing either positive wrongful act or made an omission which he shouldn’t have, which would have made him liable, here defendant is liable on his part by the wrongful act committed by him. It must be also noted that the wrongful act or omission must be recognized by law, a person can’t be held liable for mere social or moral wrong. For example- a person creating nuisance can be made liable for creating nuisance, a person publishes a defamatory statement against other can be made liable for defamation. Similarly, when a person refrains from performing his legal duty, and due to that delay of duty, he can be made liable for such omission. For example- Municipal Corporation has a duty to take care of society roads, and due to their carelessness a person lose his life because of the large potholes; Municipal Corporation would be liable for such omission to take care.
Legal Damage For a tort to be successful, the plaintiff has to prove that he has suffered legal injuries, because of the wrongful act or omission on the part of defendant causing breach of legal duty vested in the plaintiff. There must be violation of legal rights for any action to be entertained under law of torts. If there has been any violation of legal rights, it is actionable, whether any loss is suffered by plaintiff or not, this is expressed in the maxim “Injuria sine damnum”, injuria means infringement of legal rights imposed by law on the plaintiff. Damnum means substantial loss or harm in terms of money, health etc. whenever without any damages legal right is violated plaintiff can still go court because no violation of legal right should go unredressed.
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When there is no violation of legal rights, no action can lie in court whether plaintiff has suffered severe loss due to defendant’s act. This is expressed by the maxim “damnum sine injuria”. This means no action can be taken in court of law unless there is violation of legal rights, the test to know whether the defendant should or should not be liable is not whether the plaintiff has suffered any loss or not but the real test is whether any lawful right vested in the plaintiff, has been violated or not.
INJURIA SINE DAMNUM
It means violation of legal right without causing any loss or harm to the plaintiff. There are 2 kinds of torts first one is in which, defendant is liable without the proof of any damages. These torts are called actionable per se, and second one is where plaintiff has to proof that his legal rights have been violated, so he should get remedy for the act done by defendant.
Ashby v. white is the famous case of the maxim injuria sine damnum where the plaintiff was a qualified voter at a parliamentary election, but the defendant, who was a returning officer wrongfully refused to take plaintiff’s vote. No loss was suffered by plaintiff, the candidate whom he has supporting won the election, in spite of the fact it was held that the defendant was liable. Whether there is any injury of rights or pecuniary damages, every injury imports damage where a person is prevented of his right. Another case is Bhim Singh v. State of J & K, the petitioner is an M.L of J & K Assembly, he was wrongfully detained by police to attend the Assembly session, he was not produced before magistrate within 24 hours. In consequence of that he was deprived of his right to attend the Assembly session.
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competition. It was held that there has no violation of legal rights; no remedy will be given for the loss suffered.
Mental Element in Tortious Liability
Mental element is an important element in most forms of crime. Mens rea or guilty mind is required under criminal law to hold a person liable, because mere act of a person is not enough to make him liable. Intent in criminal law is synonymous with mens rea. A person is not punished for the acts which he never meant and whether he acted unintentionally for the good of the person. In torts, its existence is dependent on the circumstances and facts of each case. The liability in torts is as follows-
Fault when Relevant In this category, a person is liable if he has done a wrongful act maliciously or intentionally, torts like negligence, battery, malicious prosecution, conspiracy are some of the torts where state of mind is relevant for ascertaining the liability. Fault is an essential agreement to determine the liability of the person, when there is a failure to take reasonable steps to prevent causing harm to the person, and the other person would foresee him to be put at a risk. When the defendant has taken such care as was expected in that situation, he is not liable for the damage. If any act is done due to an inevitable accident or to prevent greater harm for the benefit of many persons, he may be excused from liability. For example – Performing operation of a man to save his life, trespassing one’s house to save them from the fire spread in their house etc.
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‘Malice in law’ means implied malice; it means an act done willfully without any cause or excuse. ‘Malice in fact’ means expressed malice, in broader sense act done with evil or bad motive.
Liability without Fault In this case mental element is quite irrelevant and liability arises without any malafide intention on the part of defendant. In such case, innocence of defendant or mistake on his part is no defence. When anyone in good faith publishes any news for the benefit of society and it turns about to be defamatory, he will be liable where he acted in good faith or bad. Tort of conversion is also an example of the same. Liability is also strict when the person makes unnatural use of land or also does any act which is inherently dangerous, for example- storing explosives, disposing of hazardous chemical waste.
####### Malice in Law and Malice in Fact
Here term ‘malice’ has been used in 2 different sense-
Malice in Law An act done wrongfully without any reasonable cause or excuse, called Malice in law. It is the intentional doing of a wrongful act and action determined by an improper motive. It depends upon the knowledge. In case of Shearer v. Shield, it has been very well described that, when a person inflicts injury upon another in contravention with law cannot take the defense that he did so with an innocent mind.
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Volenti non fit injuria or ‘consent’ Inevitable accident Mistake Defence of necessity Private defence Statutory Authority Plaintiff, the wrongdoer
VOLENTI NON FIT INJURIA
When a plaintiff consents to the infliction of some harm upon himself, he has no remedy under law of torts because if the suffering is willing, no injury is done. When a person voluntarily agrees to suffer harm, he can’t complain or asks for remedy because his consent acts as good defence against him. Consent to suffer the harm may be either express or implied. A postman entering into house for delivering letter cannot be sued for trespass nor can you sue the surgeon whom you have expressly consented for the surgical operation. In some cases of sports like cricket, car race etc. consent is implied because you are playing and watching the game in stadium with your consent at your risk. But if you deliberately harm any person you can’t plead defence of consent. In case of Hall v. Brooklands Auto Racing Club, the plaintiff was a spectator at motor car race being held in Brooklands owned by company of defendant. During the race there was a collision between two cars and by one car which was thrown among spectators injured the plaintiff. It was held that there was no liability on the part of defendant, he impliedly took the risk by watching the sports event and he could foresee the danger.
17 The plaintiff knows that the risk is there. And he knowing the same, agreed to suffer the harm.
For the maxim Volenti non fit Injuria to apply, following conditions must be fulfilled-
If only the first of these points is present i., there is only the knowledge of the risk, it is no defence because the maxim is Volenti non fit injuria, by only knowing the harm doesn’t imply that he assents to suffer it. It is necessary to show that the plaintiff’s act to the consent done by the defendant was free. The consent is not free if it has been obtained by fraud or undue influence, coercion and it will not serve as a good defence. When a person is incapable to decide or give his consent due to insanity, minority or unsoundness of mind, in that case consent of guardian is sufficient. In Smith v. Baker, the plaintiff was a workman employed by the defendants on working a drill for the purpose of cutting a rock, by the help of crane stones were being conveyed from one side to the other, and each time crane passed it passed from plaintiff’s head. While he was busy in his work a stone fell from crane and injured him. Although, he was aware of the risk, the defendant had been negligent by not warning him at the moment. It was held by House of Lords that, there was mere knowledge of risk without the assumptions of it, the maxim does not apply here and defendants were held liable.
Consent obtained by Fraud In case of consent being obtained by fraud, the defence of Volenti non fit injuria will not apply and the defendant will be held liable for the wrong by him.
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claim compensation and the defence of Volenti non fit injuria doesn’t apply in these cases. The leading case is Haynes v. Harwood, where defendant’s servant had left a two-horse van unattended in a crowded street, where some boys threw stones on the horses and they bolted and started creating danger. A police constable, who was on duty, after seeing the situation came to rescue, he managed to stop the horses but was seriously injured in the process, being a rescue case, defence of volenti non fit injuria doesn’t apply here and defendants were held liable.
Volenti non fit injuria and Contributory Negligence distinguished
In case of volenti non fit injuria, the plaintiff is always aware of the nature and extent of the dangers which he encounters while it is not so in case of contributory negligence. Volenti non fit injuria is a complete defence while in contributory negligence the claim of plaintiff is reduced to the extent, the claimant himself was to blame for the loss.
INEVITABLE ACCIDENT
Accident means an unexpected occurrence of something that could not have been prevented or avoided by a reasonable man by taking all the precautions. In such case defendants will not be held liable, if they had no intention to cause it and if plaintiff is injured because of it. In case of Padmavati v. Dugganaika, two strangers took lift in a jeep, afterwards one of the bolts fixing to the right front wheel of jeep to axle give away and wheel flew away from the axle. The jeep became unbalanced and the two strangers got serious injuries resulting in death of one of them.
It was found that it was a case of sheer accident and defect 20 can’t be detected on the basis of periodical checkups therefore, the defendants were not held liable. In Nitro - Glycerine case, a firm of carriers i. the defendants, in this case, was given a wooden case which was to carry from one place to another. The contents of the box were unknown. There was some leakage in the box and they took that box into their office to examine. After opening the box in the office, it was found that the fox was filled with Nitro Glycerine and then it suddenly exploded and the office buildings which belonged to the plaintiffs got damaged. The defendants were not held liable for the same as this couldn’t have foreseen. However defence of inevitable accident is not a license to negligence, for example A was travelling with B in his car, while driving one of the tire bursts and causes accident injuring A, after checkups it was found that tires were worn out and were in bad condition, hence the negligence of B resulted in injuries to A and he would be held liable.
MISTAKE
Generally, mistake is not a valid defence against an action for Tort. When a person voluntarily interferes with some other person’s right it is no defence to say that he has a mistaken belief or there was some justification for the same. Thus, hurting a person under mistaken belief, trespassing on someone’s land thinking to be own, injuring reputation of a person without any intention to defame is defamation. However, in certain cases it could be a valid defence. For example- In the case of malicious prosecution, if it is necessary to prove that the defendant acted maliciously and
Torts Notes - LSK-1 - Bhnchd maa k lawda
Course: BA LLB (HONS.)
University: Dr. Ram Manohar Lohiya National Law University
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