Law of Torts

B.B.A.LL. B / B.A.LL.B. (Integrated Law degree course)

Law of Torts (I Semester)

Liabilities in Torts

Tortious Liability, Vicarious Liability and No-Fault Liability

Submission To: Submitted By:

Dr. V.K. Kapoor Rajat Kaushik

Faculty of Law of Torts 17RU11020

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TABLE OF CONTENTS

Page No.
1. Acknowledgment 3
2. Research Methodology 4
3. Introduction 5
4. Tortious Liability 6
5. Vicarious Liability 7
6. Vicarious Liability of State 12
7. Strict Liability 13
8. Absolute Liability 16
9. Conclusion 18

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ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Dr. V.K.
Kapoor for inspiring me and guiding me during the course of this project work and also for
his cooperation and guidance from time to time during the course of this project work on the
topic.

Neemrana

Date of Submission: 15-11-17

Name of Student: Rajat Kaushik

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RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic “Liabilities in Torts” forming
a concrete informative capsule of the same with an insight into its relevance in the Law of
Torts.

Research Plan
The researchers have followed Research Assignment.

Scope and Limitations:

In this project the researcher has tried to include different aspects pertaining to the concept of
Tortious liability, vicarious liability and no-fault liability related to Law of Torts.

Sources of Data:
The following secondary sources of data have been used in the project-
 Article
 Websites
 Books

Method of Writing and Mode of Citation:

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The method of writing followed in the course of this research project is primarily analytical.
The researcher has followed Uniform method of citation throughout the course of this research
project.

Introduction
The word tort is derived from a Latin word tortum which means twist. It is apparent that so far
no concrete definition of law of torts have been laid down by any of the Jurists , Salmond most
admired Jurist instead of defining law of torts concentrated on the area of concerning the
development of law of torts by comparing it with ‘Pigeon Hole Theory’ 1 while many other
Jurists like Rosco Pound, Sir Hari Singh Gohr and Winfield and many more tried to create the
concept of dimensions of law of torts by comparing it with law of contract, Penal law and many
other civil law, finally it have review the literature of law of torts defining its aims , meaning
and definition , one come to the conclusion that law of torts having very long description of its
goal as an component of the legal system where we come to the conclusion that for
understanding the objective and role of law of torts can only be understand by looking and
analysing the relationship of the tort system with some other legal and social institutions
precuring similar ends.

Basically “tort is a civil wrong, it is neither breach of contract or breach of trust, the wrong
redressable by an action for unliquidated damages”.2 for which the compensation is given, due
to the wrongful acts of a person or the person who breaches someone’s legal duty with or
without any intention is in an obligation to compensate the other person with the equally likely
force or amount in simple words to compensate him.

The torts deal with both the civil as well as the criminal matter or the situations though it is
civil in nature as all torts are civil wrong but not all civil wrong are torts. As compared to law

1
SALMOND, Torts, 2nd Edition, (1910), pp.8,9.
2
WINFIELD and JOLOWICZ on Tort, 12th Edition, (1984), p. 14.

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of crime Torts are the pity offences where injured or aggrieved party files the complaint to seek
compensation, where as compared to law of contract it arises due to a breach of duty of a person
where no privity of contract needed and the damage that caused is unliquidated in nature.

What is Liability?

Liability is an obligation to a person which is arises due to the breach of duty intentionally or
without intention due to which he have to pay compensation to another person.

Tortious liability
Tortious liability is an obligation that arises in the part of wrongdoer when he fringes
someone’s legal right or breaches someone’s legal duty. According to Winfield “Tortious
liability arises from breach of duty primarily fixed by the law, this duty is towards persons
generally and its breach is redressible by an action for unliquidated damages.”3 In the case of
Ashby v. white4 here the plaintiff was a peddler and the defendant not let the plaintiff to vote
so plaintiff files a suit in order his right to vote infringed later the result declared the party the
plaintiff want to vote wins by a great margin but still defendant has to compensate the plaintiff.
Here the tortious liability of the defendant arises when he not let the plaintiff to vote.

Mainly this all want to state that the liability or the obligation that arises at the time of
infringing a right or breaching the duty that obligation is called or termed as tortious liability.
This liability is only occurring on the part of the wrongdoer.

In the term of tortious liability anyone having or doing some wrongful act that will be held
liable for his acts and the tortious liability is on the wrongdoer like in the case of Rudal Shah
v. State of Bihar 5 this was a PIL(Public Interest Litigation) filed because of the plaintiff was
arrested in the charges of murder of his wife in which he was in prison for 14 years but the
period of imprisonment declared by the court is of 10 years so he files a suite against the state
to seek compensation as a result the state have to compensate the plaintiff with a amount of
5000 rupees.

3
WINFIELD and JOLOWICZ, on Torts, 12th edition, (1984), p. 3.
4
(1703) 2 LR 938.
5
AIR 1983 SC 1086.

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In this case the tortious liability is of the state as the state has to take care of his duties and
make sure the authorities under him are running properly or not the liability of the stare arises
when the plaintiff was in the prison for the period of more than 10 years hence the liability of
the state comes when the last day of imprisonment of the plaintiff ends.

Vicarious Liability
Vicarious liability is a liability occurs due to the wrongful acts of other person within
the course of employment.

1. There are three considerations arise before a person can be held liable for a tort by
ratification:
1. It must be shown that the person ratifying it will full knowledge of its being tortious,
or it must be shown that, in ratifying and taking the benefit of the act, he meant to
take upon himself, without inquiry, the risk of any irregularity, which might have
been committed ant to adopt the transection the right or wrong. 6
2. The act of ratification must take place at a time, and under circumstances, when the
ratifying party might himself have lawfully done the act which he ratifies. 7
3. Only such acts bind a principal by subsequent ratification as were done at the time
on the principal’s behalf. 8 What is done by a person on his own account cannot be
effectually adopted by another. If an act be done by a person on behalf of another,
it is in general immaterial whether the authority be given prior or subsequent to the
act.
4. An act which is illegal and void is incapable of ratification. 9 A ratification of a tort
by a principal will not free the agent from his responsibility to third persons.

Liabilities by Relation

6
PER LOCH, J., in Rani Shamasundari Debi v. Dukhu Mandal, (1869) 2 Beng LR (ARJ) 227 (229).
7
Bird v. Brown, (1850) 4 EX 786 (799)
8
Brooke v. Hook, (1871) LR 6 EX 89.
9
Wilson v. Tumman, (1843) 6 M & G 236.

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1. Master and Servant

A servant and an independent contractor are both employed to do the same work of the
employer but there is a difference in the legal relationship which the employer has with
each of them. Here the servant is working according or working in the command of his
master.

Here the course of employment is decided by two terms i.e.

Contract for service in which the contract is for a particular nature and the contract is done
for that particular service in which the contract is done by an independent contractor. For
e.g. a person x calls for a ABC cabs for a cab ABC cab company sends his driver for pickup
x during the drive cab driver met with an accident then x seeks compensation from ABC
cabs as he is entering in a contract for service.

Contract of service in this the service the worker is for a long time and their duty is in the
specific time for a specific as authorised by his master or employer it includes the
relationships of employer employee. For e.g. X is the owner of ABC co. ltd. his employee
works on the particular contract if he done anything wrong during the course of
employment his master will be held vicariously liable.

In simple terms, the master will be held liable for the wrongful acts done by his servant during
the course of employment. In the case of Dharangadhara Chemical works v. State of
Saurashtra10 the supreme court laid down the existence right in the master to supervise and
control the execution of the work done by the servant is a ‘prima facie’ test, that the nature of
control may very from business to business and is by its nature incapable of any precise
definition, that is not necessary that the employee should be proved to have exercised control
over the work of the employee, that the test of control is not of universal application and that
there are many contracts in which the master could not control the manner in which the work
was done.

In the case of Hospital authority and the staff the hospital authority will nit held liable for any
act done by his staff in the course of employment in the case of Hillyer v St. Bartholomew’s

10
AIR 1957 SC 264.

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Hospital11 the hospital authorities were not held liable for the negligence of the professional
staff involving professional care and skill, because they lacked the power of control over them.
That position no more holds good and now the hospital authorities are liable for the professional
negligence of their staff including radiographers 12 resident house surgeons,13 assistant medical
officers and nurses14 and part time anaesthetists.15

2. Employer and Employee

In this relationship the Employer will held liable for the wrongful act done by him during
the course of employment. Here the course of employment is decided as per the terms and
conditions as given in the contract. If an independent contractor as distinguished from a
Servant is employed to do some work and in the course of work his servant commit any
tort, the employer is not answerable.16 Employer’s right to inspect works, to decide as to
the as the quality of workmanship, to stop the works or any part thereof at any stage, to
modify and alter them, and to dismiss disobedient or incompetent workmen employed by
the contractor, does not render him liable to third persons for the negligence of the
contractor in carrying out the work.17 The first question to be determined is whether the
wrongdoer is an employee (or, in the quaint language of the authorities, a servant). We are
all well familiar with, the many tests which courts and tribunals have laid down over the
years in an attempt to answer the vexed question of who is an employee. By way of
reminder:

i) An employee is someone retained under a contract of service, as opposed to a

contract to provide services. The service provided must be personal service. Thus
an employee provides his skill and labour, whereas an independent contractor
provides the fruits of his skill and labour.
ii) The most venerable method of looking at the relationship between the parties is the
“control test”. Does the employer have sufficient control not only over what work

11
(1990) 2 K.B. 820.
12
Cold v. Essex County Council, (1942) 2 K.B. 293.
13
Collins v. Hertfordshire County Council, (1947) 1 K.B. 598.
14
Cassidy v. Ministry of Health, (1951) 2 K.B. 343
15
Roe v. Ministry of Health, (1954) 2 Q.B. 66.
16
Pickard v. Smith, (1861) 10 CBN 470.
17
Reedie v. L. & N.W.Ry., (1849) 4 Ex. 244.

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is done but also over the way in which it is done? “A servant is a person subject to
the command of his master as to the manner in which he shall do his work”.
iii) The control test having been discovered to be somewhat too simplistic, the
“organisational test” was developed. This involves examining whether the worker
is integrated into the business of the employer, or whether the work done is an
accessory to that business.
iv) The difficulty with the organisational test lies in its vagueness. Similarly, what is
called the “economic reality test”, which attempts to answer the question whether,
in the eyes of an onlooker, a worker is not employed but is in business on his own
account. Factors which may be taken into account include opportunities of profit or
loss, the degree to which the worker is
a) Ready-Mixed Concrete (South East) Ltd v Minister of Pensions and National
Insurance18 .
b) Yewens v Noakes19, For a recent decision examining “control”, Bunce v Post
worth Ltd20 , Stevenson Jordan & Harrison Ltd v MacDonald v Evans21.
required to invest in the job (e.g. by provision of tools or equipment), the skill
required for the work, and the permanency of the relationship.
c) The features to look for in an employment relationship are:
v) The “irreducible minimum” that the employee is obliged to provide his own work
and the employer is obliged to provide remuneration for it.
vi) The approach now favoured by the courts (and tribunals) borrows from all of the
above approaches. Perhaps the best summary of the approach can be taken from
Hall (Inspector of Taxes)
vii) Sufficient control by the employer over the way in which the employee works. An
absence of other factors inconsistent with an employment relationship.

3. Principal and Agent:

There is no special rule dealing with the liability of principal for the torts committed by the
agent and the rules in the context of master’s liability for the torts of his servant also applied
here. “Just as the tort must be committed by a servant in the course of his employment, the

18
[1968] 2 QB 497.
19
(1880) 6 QBD 530.
20
[2005] EWCA Civ 490, [2005] IRLR 557
21
[1952] 1 TLR 101.

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act of agent will only made the principal liable if it is done within the scope of his
authority.”22 The law on this point has been stated to be that “an agent will make the
principal responsible so long as the agent does the act within the scope of his authority or
does under the actual control of the principal.” The word ‘agent’ is commonly used in
dealing with the cases of owner’s liability when he lends his vehicle to his friend and also
in context of cases related to fraud. A principal may be liable to a third person on account
of a transaction with an agent because of the principles of estoppel, restitution, or
negotiability, although he/she may not be subject to liability based on principles of
agency. Unless a person has expressly or impliedly made such other his/her representative,
no person is liable for the acts of another who assumes to represent him/her. Moreover, a
person dealing with an agent cannot hold the principal liable for any act or transaction of
the agent not within the scope of his/her actual or apparent authority. Unless the limitations
of the agency are known or can be readily ascertained, the principal is bound by
unauthorized acts of an agent through which a third party has sustained a loss.

Under circumstances which do not impute knowledge and without the principal’s knowledge
or consent, the principal is not liable for an usurious agreement of an agent which is entered
into. The principal is bound where:

i. the principal expressly or impliedly authorizes or ratifies the agent’s usurious

agreement, or
ii. the circumstances are such that the agent’s conduct is presumed to be known to the
principal.
iii. the issue is whether the agent had apparent authority to enter into an usurious
agreement. Whether the principal is bound by the agent’s acts requires a case-by-
case inquiry into whether the principal’s conduct reasonably induced a third party
to believe that the agent had authority to act for the principal.

4. Among the Partners

22
Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697: (1966) 3 SCR 527.

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In the case of partner’s liability, the all the partners of the firm are only being liable for a
wrongful act done by one of the partner in the name of the firm or as representing the firm
due to the involvement of the firm’s name all the partners of the firm held liable. But if the
wrongful act is done by the partner of the firm individually then the wrongdoer partner will
be personally liable for his wrongful acts. A related consideration concerns the "de facto"
partnership. Regardless of the attorneys' understandings among themselves, a "de facto" or
"apparent" partnership may exist for purposes of liability to a client." The law is unsettled
concerning what indicia are sufficient to create the de facto partnership, but the test seems
to be whether the attorneys have led the client to reasonably believe he was being
represented by a partnership, the potential for liability based on the de facto partnership
concept exists in loose associations of attorneys who share office space, secretarial and
administrative help, and who assist one another when the need arises. In addition, some
risk exists that liability will be imposed because of the mere use of a joint name on
letterheads and pleadings, without descriptive language to the contrary. 23

Vicarious Liability of State

The state is vicariously liable for the torts committed by its servant in the course of
employment. In the modern sense of distinction between the sovereign and non-sovereign
power does not exists it all depends on the nature of power and manner of its exercise legislative
supremacy under the constitution arises out of constitution promises the legislature is free to
legislate on the topics and subjects covered out for it similarly the executive is free to
implement and administer the law, a law made by a legislature may be bad or may be ultra-
wires but since it is an exercise of legislative power a person affected by it may challenge its
validity but he cannot approach the court of law for negligence in making the law nor the
government in exercise of its executive action be sued for its decision on political or policy
matters . It is in public interest that for acts perform by the state either in its executive or
legislative authority it should not be illogical and impractical it would be in conflict in with
even moderns of sovereignty. 24 In the case of Kasturilal Ralia Ram Jain v. State of Utter

23
Collins v. Levine, 156 Ga. App. 502, 274 S.E.2d 841, 842 (1980).
24
N. Nagender Row & co. v. State of Andra Pradesh, AIR 1994 SC 2663: (1994) 6 SCC 205.

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Pradesh25 here the state not held liable because here the custody of taking gold but it is not the
out of course of employment due to this is a valid defence to oppose the states liability. Kasturi
Lal's case was distinguished in this case too and it was pointed out that the property in respect
of which suit for damages was filed was seized by the police officers while exercising the
powers of arrest under Section 54(1) (4) of the Cr. P.C. and the act complained of was
committed during the course of employment being of the category which can claim special
characteristics of sovereign powers and it was for this reason that the principle of sovereign
immunity was extended by the Court, which was not available in a large number of other
activities. In the decision of Achut Rao Hari Bhau Kodwa and another v. State of Maharashtra
and others26, the Government doctor and 4 the State were held liable because of the negligence
of the said doctor in the hospital resulting in death of the patients, it was held that running of
hospitals not being exclusive function of the Government, maintaining a hospital by Govt.
would not be an exercise of sovereign power so as to enable to claim immunity from liability
for the tortious acts of its hospital employees. Compensation was awarded to the family of the
deceased reversing the decision of the High Court and affirming the decision of the Trial Court.

No Fault Liability
This is a liability that occurs without any fault of the defendant mainly the fault applied due
to the fault of third party or without any fault, mainly it all depends to the effect on the plaintiff
as the plaintiff suffered multiple and the saviour damage it is basically of two types

1. Strict Liability
It is a type of no fault liability where the person is held liability without any fault but it
allows various defences it is evolved from the case of Ryland v. Fletcher 27in this case the
rule of strict liability was written it has three basic essentials

a. Introducing of Dangerous thing it is basically introducing, collecting or bringing

dangerous thing on the land which is likely to cause mischief. In the case of
Crowhust v. Amersham Burial Board28 here the defendant plants a poisonous tree

25
AIR 1965 SC 1039.
26
(1996) 2 SCC 634
27
(1868) LR 3 HL 330: LRI. Ex. 265.
28
(1878) 4 EX. D 5.

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in the premises due to which caused damages to the plaintiff. This simply means
that the defendant will be liable for the damages only when the thing that escaped
from his premises was a dangerous thing. The word ‘dangerous’ here implies that
it is likely to do any sort of mischief if it escapes from the land of the defendant. In
the case studied above, the dangerous thing was the collected water in the reservoir
on Fletcher’s land. The rule specifies that things like gas, electricity, explosives,
flag pole, noxious fumes, vibrations, yew trees, sewage and even rusty wires can
also be termed as dangerous if escapes from the premises of the owner.
b. Non-natural use of land any use of land which bring and increased or abnormal
danger. In the case of Nobel v. Harrison29 in the case defendant has a normal tree
in his courtyard and the branches of that tree are legging on the highway one day
the branch broke down and harmed the plaintiff, this is a natural use of land due to
which the case is not in the target of strict liability.
c. Escape the thing must escape from the premises of the defendant. In the case of
Read v. Lyons & co.30 the company used to make explosives on the behalf of
government one day an explosive shell bursts and harms the workers in the
premises, this fits both the above given essentials but the escape of the dangerous
thing is within the premises in simple words no escape of such thing happened.
In the case of Cambridge Water Co. Ltd. v. Eastern Counties Leather plc. 31 It was held
that the defendant was not liable because the damage was not foreseeable any spoilage
of the chemical was expected to evaporate, thus foreseeability of damage is essential to
establish liability under the rule of strict liability though storage of dangerous and
harmful chemicals it is a non-natural use of land and the escape of the dangerous
chemical happens but the defendant would not held liable because of lack of
foreseeability.

Exceptions to the Rule of Strict Liability

There are basically 2 types of defences available to the defendant in the case of strict
liability:
1. Escape
2. Statutory authority

29
(1926) 2 KB 332.
30
(1947) AC 156 (HL).
31
(1994) 1 All ER 53.

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1. Escape: - In the case of escape there are basically four escapes that
made a valid ground to defend the case.
a. Act of God it is a valid ground for defence that the act is done in
dot in the control of a person these types of natural disasters are
called as act of god. In the case of Nicholas v. Marsland 32 in this
case the defendant not held liable because the damage has been
caused to plaintiff due to heavy rainfall that is a natural cause.
b. Fault of Third Party in this the damage is to be caused due to the
fault of the third person. In the case of Box v. Jubb33 in this case
the defendant not held liable because of the wrongful act is done
by the third person.
c. Plaintiff’s Fault in this case the plaintiff made himself damage
in other words the damages were to the plaintiff due to his own
fault, in the case of Eastern and South African Telegraph co. v.
Cape Town Tram Co.34 here the plaintiff’s submarine cable were
damaged due to escape of electricity from the defendant’s
Tramway but later on came to know that the shortage of
electricity is due to their own mistake, they suddenly used double
energy in order to run the same machine stops working, so here
also the defendant will not held liable due to the plaintiff’s own
fault.
d. Plaintiff’s Consent this is a defence when the plaintiff gives the
consent to do the work in order to know the consequences of his
acts in the case of Castier v. Taylor in this case there is a huge
reservoir over the house of plaintiff and defendant as the plaintiff
was on rent there he is actively using the reservoir, one day the
reservoir breaks down and harmed the plaintiff, later plaintiff
files a case of strict liability but due the defence of plaintiff’s
consent the suit has been retarded.

32
(1875) LR 10 Ex 255.
33
(1879) 4 Ex D 76.
34
(1902) AC 381, 393: 57 LTR 1990.

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2. Statuary authority

In the case of statutory authorities is a valid defence in the case of strict

liability where a state has his function Salus Populi Supreme Lax this
maxim means the state works in the welfare of society and the welfare
of the people is the supreme law. In the case of Green v. Chelsea
Waterworks Co.35, the defendant had a statutory duty to maintain
continuous supply of water. A main belonging to the company burst
without any negligence on its part, as a consequence of the plaintiff’s
premises were flooded with water it was held that the company was not
liable as the company was engaged in performing a statuary duty.

2. Absolute Liability
In the Indian scenario there is no rule of strict liability, strict liability is used to practice in
England. There has, however, been recognised of some deviation both ways i.e. in the
extension of the scope of the rule of strict liability as well as the limitations of its scope.
This simply means that the defendant will be liable for the damages only when the thing
that escaped from his premises was a dangerous thing. The word ‘dangerous’ here implies
that it is likely to do any sort of mischief if it escapes from the land of the defendant. In the
case studied above, the dangerous thing was the collected water in the reservoir on
Fletcher’s land. The rule specifies that things like gas, electricity, explosives, flag pole,
noxious fumes, vibrations, yew trees, sewage and even rusty wires can also be termed as
dangerous if escapes from the premises of the owner.36

Mainly the concept of absolute liability is derived from the case of M.C. Mehta v. Union
of India37 it is also known as Shree Ram Fertilizer Case in this case there was a leak of
oleum gas whereby various workers were injured, including death of few. The company
sought to avoid the liability on the ground that no escape beyond the premise in this P.N.

35
(1894) 70 L.T. 1248.
36
Retrieve from Http://www.Lawcitations.Com
37
AIR 1987 SC 965: (1987) 1 SCC 395.

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 Law of Torts

Bhagwati J. took a bold step and refuse to follow the rule and principal of English law, he
gives the law of absolute liability, keeping in view the socio-economic conditions of India.

The rule is based on the principle of absolute liability which provided that, if an enterprise is
engaged an inherently dangerous or hazardous activity then any damage caused because of the
same than in such case the enterprise would held liable to pay the compensation.

In the case of Charan Lal Sahu v. Union of India 38 there was a leakage of obam gas and applying
the rule of M.C. Mehta v. Union of India i.e. rule of absolute liability the defendant was held
liable to compensate to the victims of such leak.

In 2007 in Jagdish and Ors. v. Naresh soni39 a case was filed against Madhya Pradesh electricity
board because of leakage of electricity the defendant was held liable. During the proceedings
a negligence on the part of the defendants was also discovered.

The rule of strict liability and absolute liability can be seen as exceptions. A person is made
liable only when he is at fault. But the principle governing these two rules is that a person can
be made liable even without his fault. This is known as the principle of “no fault liability.”
Under these rules, the liable person may not have done the act, but he’ll still be responsible for
the damage caused due to the acts. In the case of strict liability, there are some exceptions
where the defendant wouldn’t be made liable. But in the case of absolute liability, no exceptions
are provided to the defendant. The defendant will be made liable under the strict liability rule
no matter what.

38
AIR 1990 SC 1480.
39
2007 (3) MPHT 234.

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Conclusion:
The conclusion of this project is that the person who is doing any wrong intentionally or without
any intention and cause damage to other person will have to compensate the party who suffer
any type of loss, the liabilities may be in different ways as the person can be sued in various
torts as derived in the Salmond’s Pigeon hole theory so the concluding part is that the person
have some personal or contributory liabilities pertaining to their acts.

18