LAW OF TORTS INTRODUCTION Law in general means any rule of human conduct enforced by the state. Every human being in the society has a code conduct. He should enjoy his rights and make use of his property in such a way where the others are not affected. In simple every person owes a duty towards his fellow being. If there is any breach in this duly the other person always has remedy under the common law. The responsibilty of person towards the other person is of civil nature not moral. That is a standard of conduct, Etymologically the ‘tort’ means ‘a wrong’. The term tort is derived from the Latin term ‘tortum' means ‘twisted or crooked that means it implies a conduct’. Every one is expected to behave in a straight forward manner, if any one deviates from this straight path it means he has committed tort. EMERGENCE OF LAW OF TORTS :- The growth and development of this branch of law promotes legal know how among the people. It grew out of writs. It is a product of Judicial decisions. It is not developed in India. As a general rule of English have been deemed to be applicable in India. The law torts is not codified. It is decided in the principle of natural justice, equity good conscience. The term tort literally mean “a wrong full act committed by a person causing injury or damage to another, there by injured institutes (file) an action in civil court for a remedy viz. unliquidated damages or injunction or restitution of property. Wrong is committed in two ways. By commission ie negligent operation. By Omission i.e by failure to perform duties. Public Wrongs xz Private Wrongs Committed Commission ag Negligent operation Failure to perform duties In India the issues are decided by the principles of natural justice and equity, and good conscience [equality means no disparity(welfare state), good conscience means Malice towards none] The law of tort is a series of points along the scale of conduct. With the liability not only for intentionally caused harm and also for purely accidental and even unforeseeable harm to the other person. Whenever there has been an injustifiable interference with rights of person the courts have provided a remedy. 1 Nov'07Haw of Toe.30-11-07The legislature have played a significant role in development of this branch of law by defining liability in various situations whenever unjustness was caused or social justice demanded. The term tort literally means “ a wrongful act committed by a person causing injury or damage to another, there by injured institutes (files) an action in civil court for a remedy viz unliquidated damages or injunction or restriction of property or other available relief. The person who commits tort is called “tort leasor” or wrongdoer. In India law of torts has not been fully codified and the people are also ignorance of their rights. It is a still in developing state only. For reasons most of the Indian population are iliterates and poor. Indian judicial system is very expensive and also delaying in justice. In the recent time the law of torts in India is developing change in legal system by establish Fast Track courts. Classification of Torts : f 0 Per: [To Property To Person &| L(body) Lo [Property | |. Torts relating to body : Tress pass to person Assault - Causing apprehension of injury without justification. Battery — Intentional application of force. False imprisonment:- Restraining a person liberty without sufficient excise. Defamation :- Wrong fo freedom and reputation malicious prosecution. Wrongs affecting family relations between wife and husband, parents, children, Inducing breach of marriage. Il. To Property: Tress pass to land, dispossesses wrongs affecting easements, affecting, natural rights. Relating movable property — Tess pass to goods, Detenue, Conversion, passing of, maintenance, champetry. Relating to incorporeal property. Patent rights copy rights, trade marks etc. The person who commits tort is called as a “tort feasor” or wrong does. Every human being in the society has a code of conduct. He should enjoy his rights and make use of his property in such a way where the others are not affected. We should make use of our own property in such a way as not to injure the rights of Q Now 0MLsw of Ton3011-07others. In simple every person owes a duty towards his fellow beings. If there is any breach in this duty the other person always has a remedy under the common law. The responsibility of person towards the other person is of a civil nature not moral. The law of torts aims at adjusting the movements which result from ever increasing activity of persons tuning in common society by providing compensation for him suffered by persons as a result of conduct of others, It means a breach of some duty independent of contract giving rise to civil cause of action and for which compensation is recoverable in terms of unliquidated damages. The main aim and object of the law of torts is to compensate victims and also for their dependants. It also aims at deterring the wrongdoer. As tort is based on common law it is unwritten and uncodified and it is an ever growing law many Jurists have attempted to give some definition Nov'OT/Law of Tors-0-11-07DEFINE LAW OF TORTS AND DISTINGUISH IT WITH LAW OF CONTRACTS, CRIME AND BREACH OF CONTRACT? As tort is based on common law it is unwritten and uncodified and it is an ever growing law. The tort is such a type of concept that defies exact and precise definition, Many Jurists have attempted to give some definition, DEFINITIONS: L Salmond’s := Defines Tort as a “Civil wrong for which remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or breach of trust or other merely equitable obligation”. This definition certainly helps us in understanding the place of this branch of law in the whole of legal system. According to Salmond tort is a civil wrong. In the case of a civil wrong the injured party files a civil proceedings against the wrong doer i.e, defendant in a civil court and the court tries to remedy the injured person by awarding damages since the wrong cannot be undo. In civil wrong the individuals property is damaged or its enjoyment may be disturbed or the wrong may cause him some inconvenience to live peacefully. And this type of disturbance or deprivation of the property which is movable or immovable or the inconvenience cause to his enjoyment can be compensated by paying him damages. Some times even if there is no damage compensation is avoided as a token of recognition of the right of the plaintiff to deter the wrong doer for not to repeat the wrong. That is where Salmond his of the opinion that tort is a civil wrong. . And he also specifies that the damages as a compensation in law of torts are exclusively different from the compensation which-is’ paid for bréach of contractor breach of trust in which compensation is paid in liquidated damages (fixed according to contractual terms) only. Whereas in tort the compensation is for unliquidated (not fixed), in civil wrong the plaintiff is compensated by the defendant for the injury caused hence damages are mainly based on justice equity and good conscious. Criticism: Salmond does not clarify what constitutes civil wrong which amounts to a tort. And also every civil wrong is not a tort. He gave a definition stressing on cause and remedy. He missed out the effects of tort therefore he attempted to provide legal interpretation by emphasized the tort as a civil wrong and need not be a mistake Il, Fraderick Pollocks:- “Every tort is an act or omission suffered by determinate person" ~ According to F. Pollocks tort means it is an act without lawful justification or which is contrary to law causing harm. The act or omission may not be with the intention to cause harm, but if should have been avoided with due diligence or have foreseen and prevented. This definition specifies duty to take care and whenever there is breach of duty i.e. considered as a tort. 4 Nov OTL of Ton-30-1-0Criticism:- His definition is a blanket definition. He formulated the definition on the two components only i.e cause and effect withaut reference to remedy or redressal which is a glaring omission. He cited a broad definition of cause of torts. The wrongs has to be redressed otherwise there may be a great injustice to the injured person and the society may become cheotic, His definition concentrates only on prevention without cure. Il Winfield: Defines “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 unliquidated damages’, Winfield definition is considered as the best definition. His definition has got three components 1. Cause, 2. Effect, 3. Remedy. This definition can be understood by following meaning: 1. The tort is arising from breach of duty primarily fixed by law. 2. The effect of this duty is towards persons generally. 3. Redressal by an action for unliquidated damages. 1. A man Is bound to follow certain rules made by the society to live in peace and tranquility and everyone owes a duty fo maintain peace in the’ society and this duty is fixed by.the law. For example to give a food to a man who is starving or to save.a man from drowning in a river is a social and moral duty. If it is not done there is no liability, but if a person makes a statement against the other person the aggrieved party can initiate legal proceedings against the other person since there is a violation of breach of duty which is fixed by the law not to defame the other person. Hence according to Winfield tort is a breach of duty fixed by law. 2. This duty to take care towards other persons is general and it is not against any particular specified persons that means every person has a right not to be injured by another i.e. a right ‘in rem’ which are available against the whole world. Ex; If there is a nuisance alll the persons living in the area cannot file @ petition but if a person is injured by that particular act he can file a civil action in the court of law. 3. Whenever the plaintiff suffers by the wrongful actions of defendant the plaintiff can bring action in the court for unliquidated damages. The amount of damages will be determined by the court not by the individuals. Criticism: He gave a very narrow definition. It is rigid. He failed to visualize the definition beyond the breach of duty. Each society has different duties all are not fixed by the law, In present society there are many duties which arises out of a special relationship towards particular persons Ex: passengers, carrier, Doctor, patient, Guardian and the trustee and beneficiary. Some times nominal damages are awarded not as a remedy but as a token of recognition of legal right of a person. 5 Now 0a of Torts 3011.07DISTINCTION BETWEEN THE OTHER EQUITABLE OBLIGATIONS: TORT 1. Tort is a private wrong. Ttis an offence 2. Tort is an infringement of private or civil rights. 3.Tort effects individuals only. Breach of public right and duty Itaffects community at large. | 4Petition is in the civil court by the | aggrieved party only. 5. Intention is not that important except | in certain cases. | 6. The wrong can be remedied by compensation. It main aim is to adjust the losses incurred by the party that is by compensating the injured. That tort is compensatory. 7. In torls unliquidated damages can be recovered, TORT Petition is filled in the criminal court by | the state. | intention is the crux of the offence. | Crime cannot be remedied. The main aim here is to deter the criminal and others not to commit same crime again. It is the punishment to wrong | doer. The crime is deterrent. in crime unliquidated damages can not be recovered DISTINCTION BETWEEN TORTS AND CONTRACTS: CONTRACT . A tort is inflicted without consent? Is founded necessitates. upon consent, contract duty. Obligations are not clearly defined, No privity is needed third party can sue. [Tortious liability arise from breach of| A contract is that specific of agreement, where the parties legal obligation is constituted and defined between parties [by them only ee _ Privity between the parties to the contract. Itis a violation of a right in rem. Itis fixed by the law. ~__|Fixed by the parties themselves. | Itis a infringement right in persons duty | fixed by will fixed amount, DISTINCTION BETWEEN TORTS AND BREACH OF TRUS’ RT Tort is a common law principle. | Torts unliquidated damages. I | The loss cannot be ascertained before | It can be | the commencement of the wrong, Liability is for unliquidated damages not It is the discretion of the Liability for liquidated ~~ damages. Predetermined and fixed sum of money. [BREACH OF TRUST Its origin is in equity. Damages are measured which the trust the property suffered. it ascertained before the commencement of breach of trust. Nov'oTALaw of Tare 30-11.07 otNov OTL of Tore 30-1-97DISCUSS THE ESSENTIAL ELEMENTS OF TORTS? EXPLAIN THE GENERAL CONDITIONS OF THE LIABILITY IN LAW OF TORTS? ESSENTIAL ELEMENTS OF TORTS There are certain general conditions which must be satisfied before a person can be held liable for any tort, The below conditions are essential: 1. Wrongful act — act or omission 2. Should result in legal damage 3. Legal remedy 1. To determine liability in tort it must be proved that the act done by the defendant was a wrongful act. The wrongful act is an act which is done without any lawful justification, Tortious liability arises by both act or omission to do an act. Eg: by doing an act which is prohibited or by violating another's legal right or by violating one's own duties. The wrongful act or omission must be one recognized by law. If there is a mere moral or social wrong no liabilty is arises. Commission of act is example trespass, for omission is negligence. 2. Legal damage: Damage is the direct result of the defendant's wrongful act. ., Damage means harm done toa person by the wrongful act of the defendant's act Damages means compensation which is given to the plaintiff. The concept of legal damage can be explained in through two maxims. ‘A. Injuria sine damno B. Damnum sine injuria Injuria Sine Damnum Injuria means violation of legal right. Sine means without, Damnum means damaes in the form of money, health and happiness. Injuria Sine Damnum — means violation of legal right without any damage to the plaintiff. Violation of legal rights of a person is actionable. Whether it has caused any real harm o loss to him or not that means some torts are actionable per se means actionable without the proof of any damage or loss. For example trespass. In this condition only one thing has to be proved is that plaintif legal right has been violated i.e. there is Injuria Case laws: Ashby Vs White Ashby Vs White is the leading case on the point. In that the plaintiff was a qualified voter in Parliamentary elections. The defendant, who was a returning officer wrongfully refused to take plaintiff's vote. Consequently he could not give his vote to his candidate. In spite of this his candidate won the election and no harm was caused to him. The plaintiff had suffered no loss by refusing to accept his vote 8 Nov'oTLaw of Fort-30-11-07as his candidate had won the election he was not liable. But it was held that the defendant by refusing to accept plaintiff's vote violated plaintiff's legal right and was entitled to damages. Bhim Singh Vs State of J&K. In Bhim Singh Vs State of J & K, the petitioner Bhim Singh an MLA of J&K ‘Assembly was illegally detained by the police while he was going to attend the Assembly Session and was thus prevented from exercising his legal right to attend the Assembly. The Supreme Court of India awarded him Rs.50,000/- by way of compensation for violation of his fundamental right guaranteed by Article 21 of the Constitution. Marzetti vs Willaims ~ The Plaintiff had sufficient funds in his account in the defendants bank. Inspite of this the Banker had refused to honour plaintif's cheque. It was held that the bank was liable to pay damages to the plaintiff even although he had suffered no loss. Damnum Sine Injuria: The main object of law of torts is to protect from harm being caused to the property, body and prestige of person. An action for damages lies for infringement of persons legal rights. There are conditions of liability in tort which can be illustrated by the following maxims. Damnum Sine Injuria which means damage which is not the result of legally remedial wrong, Damnum means damage, that can be illustrated or mentioned in the form of money, comfort, Health, Injuria means violation of legal rights. Sine means without, ‘The maxim Damnum Sine Injuria explains the theory of tortuous liability that is harm which is caused without violation of legal right. Harm caused without violation of egal right, is not actionable in the law of torts. Sir Federic Pollock observed as follows: “Men do many such act which causes some inconvenience or harm to others or which is likely to cause harm or inconvenience but without doing such aets it is not possible to carry on his ordinary activities in society, hence no complaint can be made for such harm or inconvenience. Every person has a right to carry on his trade or profession in competition with others even though this competition may cause loss to his rival because plaintiff is exercising his legal rights. Hence no action can lie against him Ex:- A opens a fancy shop opposite to B's shop and sales in B's shop get demised causing loss. If B sues A, it is not actionable, This principle of liability is explained in the following cases, Case Laws: 9 ov i of Tets-30-1-074, Gloucester Grammer School case 2. Moghal steamship Co Vs Megregor Gow & Co. Gloucester Grammer School case in Gloucester Grammer School case the plaintiff was running a school at a place. The defendant started anohte rschool near the school of the plaintiff. As a result of this most of the students of the plaintiff left his school and joined defendant's school. Due to competition the plaintiffs had to reduce their fees from 40 Pence to “12 pence per student per quarter and thus he suffered huge monetary loss. The plaintif filed a suit against the defendant in the court for compensation. It was held that the plaintiff was not entitled to any compensation Moghal steamship Co Vs Mcgregor Gow & Co. In Moghal steamship Co Vs Mcgregor Gow & Co. the defendants — owners of certain steamship — established an association with the aim of driving the plaintiff company out of the tea carrying trade between China and Europe. They had reduced the freight by offering rebate to customers who would deal with them. As result of this competition the plaintiff had also to reduce the freight and he suffered great loss. The court held that the plaintiff had no cause of action as the defendant had by lawful means protected their business interest by increasing their profit, Ubi jus ibi remedium ‘A tort is a civil wrong for which the remedy is an action for unliquidated damages. Thus the main remedy for a tort is an action for damages. Law of torts.is said to be a + ‘development of the maxim Ubi jus ibi remedium there is no wrong without a remedy. This maxim means that where there is a right there is remedy. That is to say whenever a right is violated the person.whose right has been infringed has a remedy. against the person who has violated it. The maxim is also said to mean that there is no wrong without a remedy, that is to say that whenever some is wronged he is given some remedy. Thus we see that these interpretations mean one and the same thing. ‘Ashby Vs White is the leading case on the point. In that the plaintiff was a qualified voter in Parliamentary elections. The defendant, who was a returring officer wrongfully refused to take plaintiff's vote. Consequently he could not give his vote to his candidate. In spite of this his candidate won the election and no harm was caused to him. The plaintiff had suffered no loss by refusing to accept his vote as his candidate had won the election he was not liable. But it was held that the defendant by refusing to accept plaintif’s vote violated plaintiff's legal right and was entitled to damages. It should, however, be noted that the maxim does not mean that there is legal remedy for every moral or political wrong. There is no remedy for a solemn promise made without consideration. A requests B to advance to him a loan of Rs.1000/- which the former needed for his marriage expenses. B agrees to advance the loan 10 Nov OW/Law of To 30-11.07but fails. A has no remedy. There is no remedy for oppressive legislation. of Tore 30-1-0EXPLAIN THE DEFENCES FOR TORTIOUS LIABILITY OR ESSENTIAL REQUIREMENTS FOR JUSTIFICATION OF TORT? EXPLAIN THE CONDITIONS NEGATING LIABILITY IN LAW OF TORTS? General principle of law that a person is responsible for all his willful acts and omissions, which are calculated to, and, which in fact, do harm to another. The law has to strike a balance between conflicting and warring interests, to achieve a sense of faimess. This it does by allocation of responsibilities and adjustment of losses. In doing so the law allows immunities to certain class of persons, and grants defences or exemptions in case of certain situations and occasions. In other words he existence of some conditions denies the very existence o any actionable wrong at all Acts done in certain special circumstances are not torts. Act s due in such circumstances are known as defences of tort or justification of torts. 4. Volenti non fit injuria 2. Act of God 3. Invitable accident 4. Private defence 5. Acts of necessity 6. Mistake 7. Statutory authority 8, Judicial Acts & quasi judicial 9. Parental — quasi parental authority 10.Exercise of common tights 4. Volenti non fit injuria Volenti non fit injuria meaning: to a willing person no injury is done, or in law no wrong is done to a man who consents to undergo it. Volens means willing. Where a person has sciens of the risk and he volunteers for the same (volens) the maxim is a good defence against him by the defendant, When a person consents to the infliction of some harm upon himself, he has no remedy for that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him. When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgical operation because you have expressly consented to these acts. Similarly, no action for defamation can be brought by a person who agrees to the publication of a matter defamatory of himser. FI go and watch a fire-workmaker for my own amusement, and the shop is blown up. A trespasser, who knew about the presence of spring guns on land, some broken glass or spikes on a wall, or a fierce dog and injured by them could not 12, Nov OT of Fot30-1-07recover damages since the person has volunteered to injury hence the same is not actionable in Illot Vs Wilkes. No man can enforce a right which he has voluntarily waived or abandoned. Consent to suffer the harm may be express or implied. Cases: 1. In Hall V Brooklands Auto Racing Club, the plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable. 2. In Padmavali Vs Dugganalka, while the driver was taking the jeep for filing petrol in the tank, two strangers took lft in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily {got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case. 3. In Wooldrige Vs Summer, .the plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the Boundary of the arena, One of the horses, belonging to the defendant, rounded the bend too fast. As the * horse galloped furiously, the plaintiff was frightened and he fell into the horses course and there he was seriously injured by the gallopin horse. The horse in question won the competition.. It was held that since the defendants had taken due care, they were not liable. 4. in Thomas Vs Quartermaine the defence of volenti non fit injuria was successfully pleaded. There the plaintiff, an employee in the defendants brewery, was trying to remove @ lid from a boiling vat. The lid was stuck and by the plaintiffs extra pull to it, it came off suddenly and the plaintiff fell back into the cooling vat which contained scalding liquid. The plaintiff was severely injured. The majority of the Court of Appeal held that the defendant was not liable because the danger was visible and he plaintiff appreciated and voluntarily encountered the same. For application of the maxim it is necessary to prove two things: (i) That the plaintiff had the knowledge of the risk; and i) That knowing fully well about it he volunteered or agreed himself to bear, i.e. he consented to shoulder the risk, i, Mere knowledge doe not imply assent: For the maxim volenti non fit injuria to appl, two points have to be proved: j The plaintiff knew that the risk is there. 13 Nov OM/Law of Tons 1-07(ii) He, knowing the same, agreed to suffer the harm If only first of these points is present, i.e. there is only the knowledge of the risk, it is no defence because the maxim is volenti non fit injuria, Merely because the plaintiff knows of the harm does not imply that he assents to suffer i. In Bowater Vs Rowley Regis Corporation, the plaintif, a cart driver, was asked by the defendants foreman to drive a horse which to the knowledge of both, was liable to bolt. The plaintiff protested but ultimately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured threby. Held, the maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover. In Smith Vs Baker, the plaintiff was 2 workman employed by the defendants on working a drill for the purpose of cutting @ rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were conveyed, the crane passed from over the plaintiffs head. While he was busy in his work, a stone fell from the crane and injured him. ‘The employers were negligent in not warning him at the moment of a recurring danger, although the plaintiff had been generally aware of the risk It was held by the House of Lords that as there was mere knowledge of risk without the assumption of it, the maxim volenti non fit injuria did not apply, and the defendants were liable. Ji, Consent or leave and licence is a defence in actions of tort or prosecutions unless the act amounts to the infliction of a serious physical injury or where the rights of the public as well as the individual sustaining harm have intervened, .As the maxim expresses, harm suffered by consent is not actionable. The maxim applies to accidental as well as international harms. At this point one has to bear in mind the distinction between consent and knowledge and assumption of risk The consent must be free: The act done by the defendant must be the same for which the consent is given. Thus, if you invite some person to your house, you cannot sue him for trespass when he enters your premises, But, if he visitor goes to a place for which no consent is given, he will be liable for trespass. For example, if a guest is requested to sit in the drawing room and without any authority or justification, he enters the bed room, he would be liable for trespass and he cannot take the defence of your consent to his visit to your house. Similarly, a postman has the implied consent of the resident of a building to go up to a particular place to deliver the dak. For his entry upto that particular point, he cannot be made liable. If the postman goes beyond that limit and enters the rooms of the house, he would be liable for the trespass. Consent obtained under compulsion Consent given under circumstances when the person does not have freedom of choice is not the proper consent. A person may be compelled by some situation to knowingly undertake some risky work which, if he had a free choice, he would not have undertaken Consent obtained by fraud; 14Consent obtained by fraud is not real and that does not serve as a good defence. In the Irish case of Hegarty Vs Shine, it has however, been held that mere concealment of facts may not be such a fraud as to vitiate consent. There, the plaintiffs paramour had infected her with venereal disease and she, therefore, brought an action for assault, Implied consent Action often speaks louder than words. Holding up one’s bare arm to a doctor at a vaccination point is an clear an assent as if it were expressed in words. Similarly acquiescence by a landowner in the use by the public of a short cut across his property permits the inference of an implied licence and prevents him from treating such intruders as trespassers until he has made it clear that further entry is prohibited, Even silence and inaction, failure to resist or protest indicates consent.” Knowledge and consent Consent is a mental judgement expressed in so many words or by conduct, it is an active involvement in decision and acquiescence. Scienter is the knowledge. Consent is a voluntary act involving comparison, choice and assent; and knowledge and information is no consent, Consent is something more than knowledge and assumption of risk is quite different from knowledge, The maxim cannot apply: () Where there is no consent, express or implied. (i) Where the consent is into free and full. (lil) Where the consent is for an illegal act, e.g. a duel with swords, a kicking- match, boxing with bare fists. (iv) Where the consent given is to make a breach of a statutory duty. (v) Where there is scinter only and no volens, because mere knowledge unaccompanied by voluntary assumption negatives the application of the maxim. (vi) Where the defendant is himself negligent, or undertakes unnecessary risk. Limitation on the scope of the doctrine: The scope of application of the doctrine of volenti non fit injuria has been curtailed - (i) In Rescue cases, (ii) _ By the Unfair Contract terms Act, 1977 (England) Inspite of eh fact that the plaintiff has consented to suffer the harm, he may stil be entitled to his action against the defendant in these exceptional situation. (i) Rescue Cases: When the plaintiff voluntarily encounters a risk to rescue somebody from imminent danger created by the wrongful act of defendant he cannot plead the defense of “Volenti non fit injuria’ Haynes Vs Harwood - Defendant Servant two horse van left the unattended. A boy threw Stone at the horse and horse took flight ran away, causing danger to woman and children on the road. Police constable in the process of rescuing injured himself. Since it is rescuing the Defendant was held liable. Waaner Vs International Railway ~ Railway passenger was thrown out of running car due to negligence of R. Co car stopped and went back to search for his friend Rescuer missed his footing and fell down bridge 15 Nov'O7HLaw of Tots 20-1-07Baker Vs T.E, Hopking & Son is another illustration on the point. In the case due to the employer's negligence, a well was filled with poisonous fumes of a petrol driven pump and two of his workmen were overcome by fumes. Dr. Baker was called but he was told not fo enter he well in view o he risk involved. Inspite of that, Dr. Baker preferred to go into the well with a view to making an attempt to help the two workmen already inside the well. He tied a rope around himself and went inside, while two women held the rope at the top. The doctor himself was overcome by the fumes. He was pulled from the well and taken to the hospital. He, however, died on way to the hospital. The two workmen inside the well had already died. Doctor's widow sued the workmen’s employers to claim compensation for her husband's death. The defendants pleaded volenti non fit injuria. It was held that the act of the rescuer was the natural and probable consequence of the defendant's wrongful act which the later could have foreseen, and, therefore, the defence of volenti non fit injuria was available. The defendants were, thus, held liable. Unfair Contract Terms Act, 1977 (England) Unfair Contract Terms Act, 1977 limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term, or by notice. Section 2 of the Act contains the following provisions in this regard: The maxim does not apply in the absence of negligence. Similarly, where a person is put in a position, as ;between Scylla and Charybdis, i.e. where there is danger on both the sides (called alternative danger) and he chooses one and is injured, he cannot be said to be a volunteer. The maxim does not apply here. - This maxim is different from contributory negligence. One has to note that the maxim is “volenti non fit injura” — not “'scienti non fit injurai’ Knowledge, alone of the danger, is not in itself conclusive; appreciation of it and consent to bear it must also be present. 2. Act of God: ~ Act of God means something in opposition to the act of man. It signifies the operation of natural forces free from human intervention. Where a ship is driven ashore by a violent storm of wind 0 a building is demolished by earthquake or lightning or where damage is caused by heavy rains, the predominant cause is the force of nature. But where a collision occurs merely because of fog or fire spreads because of wind, the predominant cause is not act of God or natural forces but the human act. Nicholas Vs Marsland ~ Defendant created artificial lakes on his lands by damning some natural streams. Once there was heavy rainfall — artificial banks burst and some of the bridges were carried away by the rush of escaping water. The defendant was not made liable since there was extraordinary rainfall which the defendant could not foresee. 3. Inevitable accident: 16 NovOTLaw of Fort-30-1-.07Inevitable accidents are those incidents which a person of ordinary prudence cannot avoid in spite of all reasonable care on his part in the circumstances in which they occur. For example, if a person walks on the public road with sword or drives a motor then it is his duty to take necessary care and to see that no person is harmed. But if inspite of requisite care accident takes place, and some one is injured, then he is not liable for that. Incidents which cannot be avoided by any amount of care. In Stanley Vs Powell the plaintiff and the defendants were members of a shooting party. The defendant fired at a pheasant (kind of bird) but unfortunately the shot from his gun hit an oak tree and rebounded and injured the plaintiff. It was held that the injury to plaintiff was the consequence of an inevitable accident and, therefore, the defendant was not liable. 4, Private defence Every person has the right to protect his property or person and for this purpose he can use necessary force, Thus, if a person uses necessary force to protect his person or property and causes harm to another person, no action can be brought against him. Law permits use of reasonable force to protect one’s person or property. Absolutely necessary to repel the invasion should be used — "A strikes B, B cannot justify drawing his sword and cutting off his hand’. The force used should not be excessive. Thie Bird Vs Holbrook — plaintiff had put up spring gun in the gafden to stop ‘the iresspassers without notice. The defendant a trespasser was seriously injured. Force used here was greater than occasion demanded. Hentce the defendant was made liable. Ramanuja Vs Ganga — The defendant had laid on live electric wire on his land. The defendant had not given a visible warning about such wire. Defendant was made liable. 5. Acts of necessity ‘An act done causing damage under necessity to prevent greater evil is not actionable even if it is done intentionally. For example, if my neighbour's house catches fire and a person pours water on it in order to put it off and thereby causes some damage to it, he will not be liable. To compel a surgeon to performance operation of an unconscious person to save his life. To forcibly feeding a hunger striking prisoner in jail to save his life, 6. Mistake Mistake, whether of fact or of law, is generally no defence to an action for tort. When a person willfully interferes with the rights of another person, it is no defence to say that he had honest. There are some exceptions when the defendant may be able to avoid his liability by showing that he acted under an honest but mistaken belief. 7. Statutory authority 7 Nov'OT/Law of Trt-30-1-07The damage is caused to @ person by an act done under the authority of the Legislature, he cannot bring an action for it, For example, construction of railway lines or running of trains without noise or sparks without interference in the private property of a person is impossible. Running of trains, provided there had been no negligence in doing such acts. Acts authorized by statues must be done carefully, 8. Judicial Acts & quasi judicial The judicial officers, judges, munsifs and magistrates are exempted from any liability for work done by them in the discharge of their judicial duties, even if they are done with malice, are not done honestly. Quasi Judicial Authority falls the authorities, or bodies like, a club, University, Medical Council. These bodies hae power to make their our regulations for running their administration. 9. Parental ~ quasi parental authority Parents and guardians had an authority to chastise their children. They can also detain the child. A father can stop and close his son into a room for setting him right. The authority of a teacher on his students are like the authority of a father ‘on his son. A teacher can give reasonable punishment to his pupils. 10.Exercise of common rights Every person has complete freedom to exercise his common or ordinary rights, even though it may causé damage to others. Evéty person is entitled to make lawful use of his property or land. Even, the bad intention or motive will not have any effect on this right. If a man dug a well on his land and thereby causes some damage to his heighbour, no petition can be brought against him. [Nov'07/Law of Tor-30:11-07THE RULE OF STRICT LIABILITY There are ceriain situations when a person may be held liable for his commission or omission of Acts, Under certain circumstances the person can held liable for some harm even though he is not negligent, no intention to cause harm or some times he may have even made same positive efforts to avert the damages. This rule is a special branch of tortuous liability. it is based on maxim ‘sic utere two ut alienum non loedas” means so use your own property as not to injure the property of your own neighbour. The rule of law is that person who for his own purposes brings anything on his own land and itis likely to do any mischief if it escapes. The person will be held liable for all the natural consequences of its escape. This is called no fault liability or strict liability. It is the principle of just, the rule of strict liability is established by English courts in case of Ryland s Fletcher in 1868. In Rylands Vs Fletcher, the defendant got a reservoir constructed, through independent contractors, over his land for the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff's coal-mines on the adjoining land, The defendant did not know of the shafts and had not been negligent although the independent contractors had been. Even though the defendant had not been negligent, he was held liable. Since liability arises even without any negligence on the part of defendant. It is, known as rule of Strict liability. For the application of the rule the following are essential 1, There must be some dangerous thing brought on.person. 2. The thing must escape 3. Thing must be for non natural use.of land. 1. Liability arises when the defendant collects a dangerous things on his land. Dangerous thing means a thing likely to cause some mischief when it escape. Ex- Gas, Electricity, Vibrations, Yew trees, Sewage, flag pole, explosives, noxious fumes and rusty wires, ect. 2. Escape:- The thing causing damage must escape to the area outside the occupation and control of defendant. Ex- Suppose there is projection of branches of poisonous tree on the neighbours land. This amounts to an escape. ‘The rule applies only when defendant brings or accumulates on his land for his own purpose same thing which is likely to escape and to do mischief. He will not be liable for the escape of things which are naturally on the land the thin may or may not do something which in its nature is capable of being naturally there. What matters in whether the particular thing was in fact been accumulated there. He will not be liable for the escape of things which are naturally on the land The Case of Read Vs Lyons & Co., is another illustration where there was no escape and, therefore, there was no liability under the rule. In that case, he plaintiff was 19 Now O1Law of Tonts-3041-07‘an employee in the defendant’s ammunition factory. While she was performing her duties inside he defendant's premises, a shell, which was being manufactured there, exploded whereby she was injured. There was no evidence of negligence on the part of the defendants. Even though the shell which had exploded was a dangerous thing, it was held that he defendants were not liable because there was not “escape” of the thing outside the defendant's premises and, therefore, the rule in Rylands Vs Fletcher did not apply to this case. 3. Non-natural use of land: The defendant is made liable if the dangerous thing which is accumulated is for un natural usage means it must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land on such a use as is proper for the general benefit of the community. Ex: Ordinary water installation in a house or a flat, domestic fire in a house, growing trees on land, building a house and putting cattle to graze on land, gas pipes in a house or shop, electric wiring in houses or shops, ordinary working of mines and mineral on land, to operate an explosives factory in time of war are all natural user of land, TLC. Balakrishnan Menon Vs T.C. Subramanian, it was held that the use of explosives in a maidan (open ground) even on a day of festival is a “non-natural” use of land because under the Indian Explosives Act, for making and storing explosive substances even on such places and at such occasions, licences have to be taken from the prescribed authorities. EXCEPTIONS TO THE RULE OF STRICT LIABILITY — Plaintiff's own defautt. Act of God Consent of plaintift Act of third party Statutory authority eaogD Plaintiff's own default:~ Damage to the plaintiff is caused by his own fault not by the defendant. That means damage is caused by the intrusion of the plaintiff and not by the escape from the defendants control and hence defendant is not liable, Case Ponting Vs Noakes — Plaintiff horse intruded into the defendant's land and died after dibbling the poisonous leaves of the tree and Defendant is not liable because damage would not have occurred but for the horses intrusion to the defendants land Act of God: If the escape has been unforeseen because of supernatural powers like vis Major means Act of God such are Heavy rains since the human memory or like earth quake, cyclones or any other natural calamity if the damage happens under these circumstances the defendant is not held liable. Consent of the Plaintiff: 20 NowOTHw of FrteaD-11-07The accumulation of the dangerous thing is by the consent of the plaintiff, such consent is implied when it is for benefit of both the defendant and Plaintiff consent is implied when it for common benefit of both. Act of third par Plaintiff damage is due the action of third partys intervention defendant can not be held liable provided the third party should not be a defendants servant or defendant should not have any sort of control over him. Ex- Stranger blocking wash basin pipes, blocking drainage pipes etc. Statutory authority:~ The defendant cannot be held liable if the act is under the statutory authority it is @ good defense for the escape of the liability. The rule of strict liability is applicable in India this liability is extended to the motre vehicles accidents. 2 Nov OTHaw of Tort-3011-07GENERAL REMEDIES IN TORTS The rule of law requires that wrongs should not remain unredressed. All individuals or persons committing wrongs should be liable in an action for damages for breach of civil law or for criminal punishment. The law o tort is founded on the principle that every injury must have a remedy. Remedies make good the default of one party. In the words of John Burke “remedy is the means by which the violation o a right is prevented, redressed or compensated. Remedies available in cases of torts may be broadly divided in two categories. Viz., judicial and extra-judicial. Judicial remedies are those remedies which an injured person gets with the help of the court. On the other hand, extra-judicial remedies are the remedies which he secures without court's help. The broad categories may be sub-divided as given in the chart below: GENERAL REMEDIES IN TORTS a Judicial Extra Judicial creer eee Damages Injunction Specific 1. Self Help restitution 2. Re entry on land a. Nominal a of property 3. Expulsion of b. Real or Temporary trespass substantial &Perpetual 4, Reception of good ¢.Contemptous 5. Abatementof d.exemplary or —prohibitory _ Nuisance punitive & 6. Distress damage e. general & mandatory feasant specific JUDICIAL REMEDIES. The judicial remedy are of 4 types. a. Damages b. Injunction c. Specific Restitution of property d. Constitutional remedies. a, DAMAGES: Damages are the pecuniary compensation payable by one person to another for injury, loss or damage caused by one to the other by breach of legal duty o commission of tort. Damages serve a double purpose: they satisfy the injured person and also act as a punishment to the gully, in order to deer him from any such steps in future. The court attempts to assess and grant a fair and reasonable compensation. Now OLaw of Tort-3011-07The wrongful act should be direct and no intention is required, Damages as a compensation may be claimed, not only for injury to the liberty physical suffering but also for disgrace and humiliation & mental suffering. Medical expenses seriousness and duration of the suffering is also considered, In ‘some circumstances damages are allowed for future maintenance also. Nominal Damage Substantial or real damages Contemptous damage Exemplary or punitive damage Special damages gaeNs 4. Nominal Damage: Nominal damages are given not as a compensation for injury or damage to the plaintiff but for recognition of legal right vested in the plaintiff. These types damages are given only in respect of torts which are actionable per se. The function of nominal damages is to mark indication where no real damages has been suffered. Cases of infringement of absolute rights are examples of nominal damages. Ex: Assault case — Ashby Vs White ~ Refer rule of strict liability These nominal damages bear no relation to the expenses of the suit, 2. Substantial or real damages: These damages are awarded for the actual damage suffered by plaintiff. It is a compensatory damage. The real damage caused to the’ plaintiffis'determined and should be proved before the court and plaintiff other legal rights are not recognized: This'kind of damages can also be awarded for a various aspects, such as physical pain, indignity, chances of marriage becoming dim, and social stigma, these damages are substantial. 3. Contemptous damages: The courts form very low opinion about plaintiff claims sometimes plaintiff suffers great damage but because of his conduct he fails to prove that he is entitled to ‘some substantial damage. Ex- Action for libel ~ If plaintiff suffers great damage but because of his conduct he fails to prove that he is entitled to damages but because of his derogatory statement his claim becomes very weak hence plaintiff is awarded only contemptuous damages. Amount may be very meagre. 4.Exemplary or Punitive: The main aim is not to award compensation to the plaintiff but to punish the defendant that means to deter him from repeating the same behaviour in future, such damages are awarded in cases where it committed intentional or maliciously. |e the motive and conduct of the defendant aggravates the plaintiffs injury. Insult and injured feelings are a proper subject for compensation. Ex: Assault. 5. General and Specific (special) damages: General damages are such damages as law will presume the injury resulted from defendant tort. It is not necessary for the plaintiff to plead. Special damages are such loss as will not be presumed by law. These types of damages are claimed by the plaintiff in his pleading. In awarding special damages the court will consider B Nov O7HLaw of Foe-30-1-07 aSvarious aspects of injury such as bodily, injury loss and loss of expectancy of life, loss of amenities. Above all these damages the courts have its own discretion and policy to award the damages based on the injury, capacity of persons, and also keeping in view of the plaintiffs present and future i.e prospective damages. Subhas Chandra vs Ram Singh — Appellant, 7 year old boy was permanently incapacitated in an accident and was in capable of doing certain acts, due to his arfiicial legs. The tribunal awarded him Rs.3,000/- damages for prospective damage for his in capacity in future which was subsequently increased to Rs.75,000 by Delhi High Court, The Plaintiff has a right to interest on damages Plaintiff is entitled to 12% from the date of fling of the suit which is payable on the total amount of compensation B. INJUNCTIONS: Injunction is an order of court restraining, the commission, repetition or continuance of wrongful act by the defendant. The plaintiff must prove damages or apprehended damage, imminent danger of ‘substantial kind or injury which will be irreparable. Thus injunction is a precautionary remedy to restrain imminent danger or wrongful act. Kinds of Injunction a. Temporary and perpetual b. Prohibitory and mandatory as ‘ (i) Temporary ~ Injunction which may continue till the specified’ ‘time or, for further orders of the court unti final hearing of the case. (ii)Perpetual injunction is one which is issued to prevent the defendant to do and act. permanently, It is a final order of the court. * C. CONSTITUTIONAL REMEDIES: Part Ill of the Indian Constitution guarantees a number of fundamental rights to the citizens of the country. Consequently, Article 32 and 226 of the Constitution confers jurisdictions on the Supreme Court and the High Courts respectively for he enforcement of these fundamental rights. Article 32, Clause (2) provides that that the Supreme Court shall have oer to issue directions or orders or writs in the nature of habeaus corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by Part II of the Constitution. Article 226 of the Constitution vests the High Courts with similar powers, not only for enforcement of the right conferred by Part Ill. D. SPECIFIC RESTITUTION OF PROPERTY: This remedy is available to the injured party who had been wrongfully disposed of his movable or immovable property. In such a case the court may ordered the defend to restore book the property to the plaintif. EXTRA JUDICIAL REMEDIES: 24 NovoT#aw of To:30-1-07The judicial remedies are to compensating for the loss. When the defendant cannot place the plaintiff on the same place as before the commission of wrongful Act. The person has some remedies available to his outside the court of law. They are the person resorts to his own strength that means instead of court the person protects his legal rights by himself. They are Self- Help Re-entry on land Expulsion of tress passer Reception of goods Abatement of nuisance eeocD a. Self help — the person has a right to use reasonable force to protect his property, body members of his family, servant and master. But this right is ‘subject to condition that use of force must be in proportion to the danger or injury, b. Re-entry on land: - By suing necessary force the person can re enter his land on whom he has been dispossessed of. He can use necessary force by peaceful manner. c. Expulsion of trespasser:- The person is allowed to use necessary force to expel trespasser the force must be proportional force. This expulsion can be done in the situation prior to the entry or after entry. d. Reception of goods: When the person is dispossessed of his chattels or animals wrongfully he is entitled to repossessing them. In this process if he enters upon the land of another that will not amount to tress pass. e. Abatement of nuisance: Nuisance is done or on a persons land then he is entitled to abate or, remove the nuisance. The person can enter upon his neighbours land. There are certain restrictions on this right. F 1. He should give notice to his neighbour 2. There should not be unnecessary damage unless it is necessary in the circumstances 3, If there is chance to opt in two ways less loss one, had to be opted. DISTRESS DAMAGE FEASANT: If cattle or chattels unlawfully come on the land and cause some damage, the occupier of the land has right to seize such cattle or chattels and to detain them until payment of compensation for the damage done by them. This right of seizure and detention is called right of distress damage feasant. Suppose a neighbour's cow comes on my field and causes damage to crops or the players strike a ball which breaks my windowpane, | have right to detain such cow or ball until the damage is made good. The right is based on the principle of natural justice that whatever does damage should be a pledge to make compensation for it. Distress is a remedy for trespass. LIMITATIONS ON THE RIGHT:- The right of distress is subject to following restrictions:- ()) Wrongful presence of the object :- The thing detailed must be wrongfully on the land, If itis not wrongfully there, it cannot be detained. If the cattle which are being driven along the road stray on the land of an owner of adjoining land without any fault of the person driving them, they cannot 25 Nov’O7#Law of Foe 30-1-07