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TORT's COURSE MODULE Module-1 4 hours.

Definition, Nature, Scope and Objects A wrongful act- violation of duty imposed by law, duty which is owed to people generally (in rem) damnum sine injuria and injuria since damnum Tort distinguished from crime and breach of contract The concept of unliquidated damages. Changing scope of law of torts: expanding character of duties owed to people generally due to complexities of modern society Object- prescribing standards of human conduct, Redressal of wrongs by payment of compensation, prescribing unlawful conduct by injunction. The module gives understanding of the nature of law of tort, rights and duties nad how the tort law differs form the law of contract and crime.The basic concept of the law of tort and the types of tortuous liability has been defined. Cases 1.Ashby v. White (1703) 2 Ld. Raym. 938 2.Rookes v. Barnard (1964) AC 1027 3.White v. John Warwick & Co. Ltd. (1953) 2 WLR 1285 4.Acton v. Blundell (1843) 12 M & W 324 5.The Municipal Board of Agra v. Asharfial AIR 1922 All 1 Module-2 2Hours Principles of Liability in Torts Fault Wrongful intent Negligence Liability without fault Violation of ethical codes Statutory liability Place of motive in torts Cases: Jayalakshmi Salt Works Pvt Ltd. v. State of Gujrath (1994) 4 SCC 1 Town Area Committee v. Prabhu Dayal AIR 1975 All. 132 State of Andhra Pradesh v. Govardhnalal Pitti (2003) 3 SCALE 107 In re. Polemis (1921) 3 KB 560 Overseas Tankship (UK) Ltd. v. Morris Dock & Engg. Co. Ltd. (The Wagon Mound Case) (1961) 1 All E R 404 Smith v. Leech Brain & Co. (1961) 1 All E R 1159 Mc Ghee v. National Coal Board (1972) 3 All E R 1008 Hotson v. East Buckshire Area Heath Authority (1987) 2 All E R 909 Liesbosch Dredger v. Edison (1933) AC 449 Smith v. L & S W Rly Co. (1870) LR 6 C.P. 14 Wilkinson v. Downtown (1897) 2 QB 57 Hughes v. Lord Advocate (1963) 1 All E R 705 Haynes v Harwood (1935) 1 KB 146 Module-3 3 Hours Justification in Tort Volenti non fit injuria Necessity, Private and Public Plaintiffs default Act of god Inevitable accident Private defense Statutory authority Judicial and quasi-judicial acts Parental and quasi-parental authority Cases: Hall v. Brooklands Auto Racing Club (1932) 1 KB 205 Smith v. Baker and Sons (1891) AC 325 South Indian Industrial Ltd. Madras v. Alamulu Anmal (1923) MWN 344 Haynes v. Harwood (1935) 1 KB 146 Ramchand Ram Nagaram Rice & Oil Mills Ltd. V. Municipal Commissioner of Purilla Municipality (1943) ILR 22 Pat 359 Gillick v.

West Norfolk & Wiseback Area Health Authority (1985) 3 All E R 402 Wooldridge v. Summer (1962) 2 All E R 978 Bird v. Hotbrook (1828) 4 Bin 628 Reeves v. Commission of Police of the Metropolitan (1998) 2 All E R 381 Module-4 2 Hours Actio personalise moritur cum persona exceptions Waiver and acquiescence Release Accord and satisfaction Limitation Cases: Rose v. Ford 1937 AC 826. Klaus Mittelbachert v. The East India Hotels Ltd. AIR 1997 Del 201p.231 Module-5 2 Hours Standing Who may sue aggrieved individual class action social action group Statutes granting standing to certain persons or groups Who may be sued? Cases: Campbell v. Paddington Corporation (1911) 1 KB 869 Robinson v. Post Office (1974) All E R 737 Walker v. G N Railway and Co. of Ireland (1861) L.R Ir. 69 Naval Kishore v. Rameshwar AIR 1995 AIL 594 Merryweather v. Nixan (1799) 8 TR 186 Module-6 2 Hours Doctrine of Sovereign immunity and its relevance in India Cases: Lloyd v. Grace Smith & Co. (1912) AC 716 State Bank of India v. Shyama Devi AIR 1978 SC 1263 State Bank f Ranjasthan v. Vidyawati AIR 1962 SC 933 Kasturilal Ralia Ram Jain v. State of UP AIR 1965 SC 1039 N Nagendra Rao & Co. v. State of AP AIR 1994 SC 2663 Chairman Railway Road v. Chandrima Das AIR 2000 SC 988 Peninsular and Oriental Navigation Company v. Secretary of State for India (1861) 5 Bom. HCR App. 1, p.1 Module-7 3 Hours Basis, scope and justification Express authorization Ratification Abetment Special Relationships Master and servant arising out of and in the course of employment who is master? the control test who is servant? borrowed servant independent contractor and servant, distinguished Principal and agent Corporation and principal officer Cases: Mersery Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd. (1947) AC 1, 17 Lister v. Hesley Hall (1856) 1 D & B 118 Tarry v. Ashton (1876) 1 QBD 314 Module-8 7 Hours Torts against persons and personal relations Assault, battery, mayhem False imprisonment Defamation libel, slander including law relating to privileges Marital relations, domestic relations, parental relations, master and servant relations Malicious prosecution Shortened expectation of life Nervous shock Cases: Nemi Chand v. Wallace (1907) ILR 34 Cal. Tushar Kanthi Ghosh v. Bina Bhowmick (1952) 57 CWN 3778 R K Karanjia v. K M D Thakersey AIR 1970 Bom 424 Cassidy v. Daily Mirror (1929) 2 KB 331 Sim v. Stretch (1936) 52 TLR 669\ M C Vergheeses v, T J

Poonam AIR 1970 SC 1876 Module- 9 3 Hours Wrongs affecting property Trespass to land, trespass ab initio, dispossession Movable property- trespass to goods, detinue, conversion Torts against business interests injurious falsehood, misstatements, passing off Cases: 1.Meering v. Grahame white Aviation Co. (1920) 121 ILT 44 2.Herring v. Boyle 1949 All E R 1126 3.Rookes v. Bernard (1964) AC 1129 Module-10 5 Hours Negligence Basic concepts Theories of negligence Standards of care, duty to take care, carelessness, inadvertence Doctrine of contributory negligence Res ipsa loquitor and its importance in contemporary law Liability due to negligence: different professionals Liability of common carriers for negligence Product liability due to negligence: liability of manufacturers and business houses for their products Cases: Donoghue v. Stevenson (1932) AC 562 Municipal Corporation of Delhi v. Subhagwati AIR 1966 SC 1750 Municipal Corporation of Delhi v. Sushil Devi AIR 1999 SC 1929 Association of Victims of Upahar Tragedy v. Union of India 86 (2000) DLT 246 Pinnamaneni Narasimha Rao v. Gundavarapu Jayaprakash AIR 1990 A.P 207 Lucknow Development Authority v. M K Gupta AIR 1994 SC 787 Indian Medical Association v. V P Shantha AIR 1996 SC 550 M/s Spring Meadows Hospital v. Harjot Singh Anluwalia AIR 1998 SC 1801 Grant v. Australian Knitting Mills (1936) AC 85 10. Murphy v. Birmingham Waterworls (1990) 2 All E R 269 11. Heaven v. Pender (1883) 11 QBD 503 12. Bolton v.Stone (1951) AC 850 13. Union of India v. United India Insurance AIR 1998 SC 640 14. Rajkot Municipal Corporation v. Manjulaben Jayantilal Nukum (1997) 9 SCC 552 15. Allen v. Gulf Oil Refinery Ltd (1981) 1 All E R 353 16. Baker v. T E Hopkins & Sons (1959) 1 WLR 966 17. Admirality Commissioner v. S.S.Volute (1922) 1 AC 129 18. Hambrook v. Stoke Brothers (1925) 1 KB 141 19. Bourhill v. Young (1943) AC 92 20. Mc. Laughlin v. OBrian (1982) 2 All E R 736 21. Alcock v. Chief Constable of South Yorkshire (1991) 4 All E R 907 22. Page v. Smith (1995) 2 All E R 298 23. Mariach v. QRZ Media (Unreported case on IIED) 24. Fletcher v. Western National Life Insurance Co.[1970] 10 CA 3d 376 Module: 11 2 Hours Nuisance Definition, essentials and types Acts which constitute nuisance obstructions of highways, pollution of air, water, noise, and interference with light and air Cases:

Hollywood Silver farm v. Emmet (1936) 2 KB 468 Sturgess v. Bridgeman (1879) 11 Ch. D. 852 Kuldeep Singh v. Subhash Chand Jain Module: 12. 3 hours Absolute/Strict liability The rule in Rylands v. Fletcher Liability for harm caused by inherently dangerous industries Module: 13 3 Hours Legal remedies Legal remedies Award of damages simple, special, punitive Remoteness of damageforeseeability and directness Injunction Specific restitution of property Extra-legal remedies-self-help, re-entry on land, re-caption of goods, distress damage feasant and abatement of nuisance Module: 14 6 Hours Consumer Protection Act, 1986 Cases: Laxmi Engineering Works v PSG Industrial Institute AIR 1995 SC 1428 Donoghue v Stevenson (1932) ac 562 Dr Laxman Balakrishna Joshi v Dr Trimbak Bapu Godbole AIR 1969 SC 128 Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256 While v John Warrick and Co Ltd (1953) 1 WLR 1285 White v Munuswami AIR 1966 Mad 13 Sumant Prasad v Sheojanam 1972 Cr LJ 1707 (SC) Consumer Goods Services Defect and Deficiencies Restrictive Trade Practice Unfair Trade Practice Cases: Indian Medical Association v VP Santha AIR 1996 SC 550 Regional Provident Fund Commissioner Vs Shiv Kumar Joshi AIR 2000 SC 331 Lucknow Developmental Authority v/s MK Gupta, AIR 1994 SC 78. Spring Meadows Hospital and Anr v Harjol Ahluwalia & Anr (1998) 4 SCC 39 M/s Cheema Engineering Services v Rajan Singh 1996 (2) CPR 11 (NC) Mukesh Jain v VK Gupta 1992 (2) CPJ 493 (NC) 7. Akhil Bhartiya Grahak Panchayat v Secretary Sharda Bhawan Education Society 19 94 (2) CPJ 283 (NC) Central Consumer Protection Council State Consumer Protection Council District Consumer Protection Councils District Consumer Dispute Redressal Forum State Consumer Dispute Redressal Commission National Consumer Dispute Redressal Commission MD Orissa Cooperative Housing Corporation Ltd v KS Sudarsan MANU/CF/0182/2002 State of Haryana v National Consumer Awareness Group 2005 (5) SCC 284 Dy Registrar Colleges and Anr v. Ruchika Jain and Others MANU/CF/0158/2006 M/s India Photographic Co Ltd v HD shourie AIR 1999 SC 2453 Lucknow Developmental Authority v/s MK Gupta, AIR 1994 SC 78. Consumer Education & Research Society & Anr. v/s New India Assurance Co. Ltd. & Ors. (CLJ -II-April, 2008). India Photographic Co. Ltd. v/s HD Shourie, AIR 1999 SC 2453. Module-15

6 Hours The Motor Vehicles Act, 1989 Machindranath Kernath Kasar Vs. D.S. Mylarappa and Ors. MANU/SC/2484/2008, AIR2008SC2545, Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr. MANU/SC/0246/1977 : [1977]2SCR886 Greater Bombay v. Laxman Iyer and Anr. MANU/SC/0836/2003 : AIR2003SC4182 Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Ors. AIR2010SC1162, MANU/SC/1416/2009 Reshma Kumari and Ors. vs. Madan Mohan and Anr. (23.07.2009 - SC) Ningamma and Anr. vs. United India Insurance Co. Ltd. (13.05.2009 - SC) New India Assurance Co. Ltd. vs. Bismillah Bai and Ors. (20.03.2009 - SC) A.P.S.R.T.C. and Anr. vs. K. Hemalata and Ors. (16.05.2008 - SC) Oriental Insurance Co. Ltd. vs. Premlata Shukla and Ors. (15.05.2007 SC) Law on Tort Definition of TortTort derived from the Latin word tortum, which means to twist. It includes that conduct which is not straight or lawful. It is equivalent to the English term wrong. Salmond- It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation. We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere branch of contract or breach of trust. Distinction between Tort and crimeTort Crime i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong. i) More serious wrongs have been considered to be public wrongs and are known as crimes. ii) The suit is filed by the injured person himself. ii) The case is brought by the state. iii) Compromise is always possible. iii) Except in certain cases, compromise is not possible. iv) the wrongdoers pays compensation to the injured party. iv) The wrongdoer is punished. Distinction between Tort and breach of contractBreach of contract Tort i) It results from breach of a duty undertaken by the parties themselves. i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law. ii) In contract, each party owes duty to the other. ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large.

iii) Damage of contract is liquidated. iii) Damage of tort is unliquidated. iv) It provides limited remedy iv) It provides unlimited remedy. Distinction between Tort and Breach of trustTort Breach of Trust i) Damage of tort is unliquidated. i) Damage of breach of trust is liquidated. ii) Law of tort was part of common law. ii) Law of trust was part of Court of Chancery. iii) Tort is partly related to the law of property. iii) Trust is a branch of law of property. Latin terms and maximsCausa causans- An immediate and effective cause. Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event would not have occurred. Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative. East India Commercial Co. v. Collector of Customs, AIR 1962Municipal Board v. State Transport Authority, AIR, 1965Prem Bus Service v. R.T.A, AIR 1968Chockalingam v. C.I.T, AIR, 1963Inayatullah v. Custodian, Evacuee Property, AIR, 1958Volenti non fit injuria- There is no injury to one who consents. 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. Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers took lift 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, first, 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. Wooldrige v. Sumner- 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 galloping horse. The horse in question won the competition. It was held that since the defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty of skill. Ex turpi causa non oritur actio No action arises from a wrongful consideration. Hardy v. Motor Insurers Bureau- This was a case where a security officer was dragged along when he tried to stop a car. Lord Denning MR said: no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim. Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim. Damnum sine injuria Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it. Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits. Ushaben v. Bhagyalaxmi Chitra Mandir The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named Jai Santoshi Maa. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected.

Action v. Blundell The defendants by digging a coal pit intercepted the water which affected the plaintiffs well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbours well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action. Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon anothers land is actionable even though it has done the plaintiff not the slightest harm. Ashby v. White Bhim Singh v. State of J & K The petitioner, an MLA, of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within the requisite period. As a consequence of this, the member wad deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right guaranteed under the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to 50,000 were awarded to him. More Terminologies Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse. In its legal sense it means a wrongful act done intentionally without just cause or excuse. Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types: i) Malice in fact ii) Malice in law Malice in fact Means an actual malicious intention on the part of the person who has done the wrongful act. It is also called express or actual malice. Malice in law It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen. Motive Motive is that which incites or stimulates a person to do an act. It is the moving power which impels to action for a definite result. Motive is mainspring of human action. It is cause or reason. It is something which prompts a man to form an intention. Intention A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or which it wishes to express or achieve; the willingness to bring about something planned or foreseen.

Injury- In legal parlance, injury means any wrong or damage done to another, either in his person, rights, reputation or property. Meaning under Penal Code, 1860 (section 44) the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Malfeasance it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to do. The word malfeasance would apply to a case where an act prohibited by law is done by a person. (Khairul Bahsar v. Thana Lal AIR 1957) Misfeasance Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful authority; official misconduct; breach of law. The word misfeasance would apply to a case where a lawful act is done in an improper manner. Nonfeasance - Non performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty. Nonfeasance would apply to a case where a person omits to do some act prescribed by law. Distinction between Misfeasance, nonfeasance and malfeasance Misfeasance is the improper doing of an act which a person may wilfully do. Nonfeasance means the omission of an act which a person ought to do. Malfeasance is the doing of an act which a person ought not to do at all. Remedies Remedies are of two types- (i) judicial and (ii) extra-judicial. Judicial remedy is of three types: (i) Damages, (ii) Injunction and (iii) Restitution of property Types of damages a) Exemplary or Vindictive damages are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice etc. b) Ordinary or Real damages are compensation for general damage. General damages are those which the law implies in every breach of contract and in every violation of a legal right. c) Nominal damages They are awarded for the vindication of a right where no real

loss or injury can be proved. d) Contemptuous damages Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC 1908. Types of injunction (i) Mandatory When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach (s. 55 of the Specific Relief Act, 1877). (ii) Permanent or perpetual By perpetual injunction a defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s. 53, the Specific Relief Act, 1877). (iii) Temporary Temporary injunction is such as is to continue until a specified time, or until the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1. (iv) Ad-interim Restitution of property Restitution means restoration of anything to its rightful owner. Extra-judicial remedies arei) Self defence The use of force to protect oneself, ones family, or ones property from a real or threatened attack. ii) Expulsion of trespassers Forcibly evicting the trespasser. iii) Reception of chattels Chattel means movable or transferable property; personal property. iv) Re-entry of land v) Abatement of nuisance Abatement is the act of eliminating or nullifying; the act of lessening or moderating. vi) Distress damage feasant the right to seize animals or inanimate chattels that are damaging or encumbering land and to keep them as security until the owner pays compensation. Who may sue and who may be sued Every person can sue in case of tort including the minor with the consent of his guardian or the court. The following persons cannot suei) Citizen of foreign state If a citizen of foreign country wants to file a suit against a Bangladeshi or a other citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s. 83 of CPC) ii) Alien enemy Every person residing in a foreign country the Government of which is at war with, or engaged in military operations against Bangladesh and carrying on business without a license will be regarded as an alien enemy. Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue. No alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s. 83 of CPC)

iii) Foreign state A foreign state cannot sue unless it is recognized by the Government. vi) Bankrupt The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared insolvent, his properties are taken over and a receiver is appointed as the supervisor of that property. A bankrupt cannot sue as long as civil wrongs are concerned. v) Felons/Convicts Felon is a person who has been proven guilty and declared with punishment but fled away. Convict is a person who has been proven guilty but has not fled away. A felon cannot file a suit. But a convict can file a suit. vi) Corporation A corporation gets a legal entity when it is registered. No unregistered corporation can file a suit. vii) Child in mothers womb This is called pre-natal injuries. Walker v. G.N. Ry. Co. of Ireland the plaintiff, a child, sued the railway company for damages on the ground that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident due to railways negligence, when the plaintiffs pregnant mother travelled on the defendants railway. It was held that the defendants were not liable for two reasons. Firstly, the defendants did not owe any duty to the plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiffs claim was very uncertain. Montreal Tramways v. Leveille The Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the negligence of the defendants. Majority of the writers are in favour of the view that an action for pre-natal injuries should also be recognized, once that the act of the defendant is considered to be tortious. Who may not be sued i) President/head of the state According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit can be filed against the President as long he is holding the post of the President. ii) Foreign sovereign No suit can be filed against a foreign sovereign unless a consent to the same is obtained from that sovereign (s. 86 & 87). iii) Ambassador / High Commissioners High Commission is an embassy from one commonwealth country to another. iv) Public servants The list of the public servants are given in s. 21, 13 & 14 of the Penal Code, 1860. Also who are appointed through PSC are to be regarded as public servants. An application for consent from the Government is required before filing a suit against them. v) Corporation Unless it is a registered corporation, a suit cannot be filed against it. vi) Infant / Minor According to the Penal Code, a minor is a child of 9 12 years. But age of the minor varies in various Statues. vii) Unsound mind There are various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912. Negligence Essentials of negligence-

i) The defendant owes a duty of care to the plaintiff; ii) The defendant made a breach of that duty; and iii) The plaintiff suffered damage as a consequence thereof. i) The defendant owes a duty of care to the plaintiff It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists. Donoghue v. Stevenson A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty. Palsgraaf v. Long Island Railroad Co. The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said, the conduct of the defendants servant was not wrong. Relatively to her it was not negligence at all. Duty depends on reasonable foreseeability of injury If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. No liability when injury is not foreseeable Glasgow Corp. v. Muir The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event. Reasonable foreseeability does not mean remote possibility Bolton v. Stone A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence. Duty of care Booker v. Wenborn (1962) - The defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform. ii) Breach of duty Breach of duty means non-observance of due care which is required

in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered. (a) The importance of the object to be attained K. Nagireddi v. Government of Andhra Pradesh Due to construction of a canal by the state government, all the trees of the plaintiffs orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government. (b) The magnitude of risk Kerala State Electricity Board v. Suresh Kumar A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty. (c) The amount of consideration for which services, etc. are offered Klaus Mittelbachert v. East India Hotels Ltd. the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available. iii) The plaintiff suffered damage It is also necessary that the defendants breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendants negligence. Res ipsa loquitur- It means the things itself speaks. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. Hambrook v. Stokes Bors. Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable. Dickson v. Reuter Contributory negligence When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm. Rural Transport Service v. Bezlum Bibi (1980) The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit

by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus. Yoginder Paul Chowdhury v. Durgadas (1972) The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence. Doctrine of alternative danger There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant. Jones v. Boyce (1816) The plaintiff was a passenger of defendants coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover. Shayam Sunder v. State of Rajasthan (1974) Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable. Negligence in our laws The Penal Code, 1860 s. 284 If anyone has custody of poisonous substance and fails to guard against probable danger is punishable with 6 month or 1000 taka or with both. s. 285 - If anyone acts rashly or negligently to endanger human life with fire or combustible substance is punishable with 6 month or 1000 taka or with both. s. 286 If anyone acts rashly or negligently to endanger human life with explosive substance is punishable with 6 month or 1000 taka or with both. s. 287 If anyone acts rashly or negligently to endanger human life with any machinery is punishable with 6 month or 1000 taka or with both. s. 288 If anyone in pulling down or repairing any building knowingly or negligently omits to guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or with both. s. 289 If anyone knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life or any probable danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with both. Law on Tort Definition of TortTort derived from the Latin word tortum, which means to twist. It includes that conduct which is not straight or lawful. It is equivalent to the English term wrong. Salmond- It is a civil wrong for which the remedy is a common law action for

unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation. We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere branch of contract or breach of trust. Distinction between Tort and crimeTort Crime i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong. i) More serious wrongs have been considered to be public wrongs and are known as crimes. ii) The suit is filed by the injured person himself. ii) The case is brought by the state. iii) Compromise is always possible. iii) Except in certain cases, compromise is not possible. iv) the wrongdoers pays compensation to the injured party. iv) The wrongdoer is punished. Distinction between Tort and breach of contractBreach of contract Tort i) It results from breach of a duty undertaken by the parties themselves. i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law. ii) In contract, each party owes duty to the other. ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large. iii) Damage of contract is liquidated. iii) Damage of tort is unliquidated. iv) It provides limited remedy iv) It provides unlimited remedy. Distinction between Tort and Breach of trustTort Breach of Trust i) Damage of tort is unliquidated. i) Damage of breach of trust is liquidated. ii) Law of tort was part of common law. ii) Law of trust was part of Court of Chancery. iii) Tort is partly related to the law of property. iii) Trust is a branch of law of property. Latin terms and maximsCausa causans- An immediate and effective cause.

Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event would not have occurred. Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative. East India Commercial Co. v. Collector of Customs, AIR 1962Municipal Board v. State Transport Authority, AIR, 1965Prem Bus Service v. R.T.A, AIR 1968Chockalingam v. C.I.T, AIR, 1963Inayatullah v. Custodian, Evacuee Property, AIR, 1958Volenti non fit injuria- There is no injury to one who consents. 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. Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers took lift 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, first, 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. Wooldrige v. Sumner- 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 galloping horse. The horse in question won the competition. It was held that since the defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty of skill. Ex turpi causa non oritur actio No action arises from a wrongful consideration. Hardy v. Motor Insurers Bureau- This was a case where a security officer was dragged along when he tried to stop a car. Lord Denning MR said: no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim. Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim.

Damnum sine injuria Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it. Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits. Ushaben v. Bhagyalaxmi Chitra Mandir The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named Jai Santoshi Maa. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected. Action v. Blundell The defendants by digging a coal pit intercepted the water which affected the plaintiffs well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbours well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action. Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon anothers land is actionable even though it has done the plaintiff not the slightest harm. Ashby v. White Bhim Singh v. State of J & K The petitioner, an MLA, of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within the requisite period. As a consequence of

this, the member wad deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right guaranteed under the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to 50,000 were awarded to him. More Terminologies Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse. In its legal sense it means a wrongful act done intentionally without just cause or excuse. Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types: i) Malice in fact ii) Malice in law Malice in fact Means an actual malicious intention on the part of the person who has done the wrongful act. It is also called express or actual malice. Malice in law It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen. Motive Motive is that which incites or stimulates a person to do an act. It is the moving power which impels to action for a definite result. Motive is mainspring of human action. It is cause or reason. It is something which prompts a man to form an intention. Intention A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or which it wishes to express or achieve; the willingness to bring about something planned or foreseen. Injury- In legal parlance, injury means any wrong or damage done to another, either in his person, rights, reputation or property. Meaning under Penal Code, 1860 (section 44) the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Malfeasance it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to do. The word malfeasance would apply to a case where an act prohibited by law is done by a person. (Khairul Bahsar v. Thana Lal AIR 1957) Misfeasance Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful authority; official misconduct; breach of law.

The word misfeasance would apply to a case where a lawful act is done in an improper manner. Nonfeasance - Non performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty. Nonfeasance would apply to a case where a person omits to do some act prescribed by law. Distinction between Misfeasance, nonfeasance and malfeasance Misfeasance is the improper doing of an act which a person may wilfully do. Nonfeasance means the omission of an act which a person ought to do. Malfeasance is the doing of an act which a person ought not to do at all. Remedies Remedies are of two types- (i) judicial and (ii) extra-judicial. Judicial remedy is of three types: (i) Damages, (ii) Injunction and (iii) Restitution of property Types of damages a) Exemplary or Vindictive damages are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice etc. b) Ordinary or Real damages are compensation for general damage. General damages are those which the law implies in every breach of contract and in every violation of a legal right. c) Nominal damages They are awarded for the vindication of a right where no real loss or injury can be proved. d) Contemptuous damages Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC 1908. Types of injunction (i) Mandatory When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach (s. 55 of the Specific Relief Act, 1877). (ii) Permanent or perpetual By perpetual injunction a defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s. 53, the Specific Relief Act, 1877). (iii) Temporary Temporary injunction is such as is to continue until a specified time, or until the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1. (iv) Ad-interim Restitution of property Restitution means restoration of anything to its rightful owner.

Extra-judicial remedies arei) Self defence The use of force to protect oneself, ones family, or ones property from a real or threatened attack. ii) Expulsion of trespassers Forcibly evicting the trespasser. iii) Reception of chattels Chattel means movable or transferable property; personal property. iv) Re-entry of land v) Abatement of nuisance Abatement is the act of eliminating or nullifying; the act of lessening or moderating. vi) Distress damage feasant the right to seize animals or inanimate chattels that are damaging or encumbering land and to keep them as security until the owner pays compensation. Who may sue and who may be sued Every person can sue in case of tort including the minor with the consent of his guardian or the court. The following persons cannot suei) Citizen of foreign state If a citizen of foreign country wants to file a suit against a Bangladeshi or a other citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s. 83 of CPC) ii) Alien enemy Every person residing in a foreign country the Government of which is at war with, or engaged in military operations against Bangladesh and carrying on business without a license will be regarded as an alien enemy. Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue. No alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s. 83 of CPC) iii) Foreign state A foreign state cannot sue unless it is recognized by the Government. vi) Bankrupt The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared insolvent, his properties are taken over and a receiver is appointed as the supervisor of that property. A bankrupt cannot sue as long as civil wrongs are concerned. v) Felons/Convicts Felon is a person who has been proven guilty and declared with punishment but fled away. Convict is a person who has been proven guilty but has not fled away. A felon cannot file a suit. But a convict can file a suit. vi) Corporation A corporation gets a legal entity when it is registered. No unregistered corporation can file a suit. vii) Child in mothers womb This is called pre-natal injuries. Walker v. G.N. Ry. Co. of Ireland the plaintiff, a child, sued the railway company for damages on the ground that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident due to railways negligence, when the plaintiffs pregnant mother travelled on the defendants railway. It was held that the defendants were not liable for two reasons. Firstly, the defendants did not owe any duty to the plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiffs claim was very uncertain.

Montreal Tramways v. Leveille The Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the negligence of the defendants. Majority of the writers are in favour of the view that an action for pre-natal injuries should also be recognized, once that the act of the defendant is considered to be tortious. Who may not be sued i) President/head of the state According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit can be filed against the President as long he is holding the post of the President. ii) Foreign sovereign No suit can be filed against a foreign sovereign unless a consent to the same is obtained from that sovereign (s. 86 & 87). iii) Ambassador / High Commissioners High Commission is an embassy from one commonwealth country to another. iv) Public servants The list of the public servants are given in s. 21, 13 & 14 of the Penal Code, 1860. Also who are appointed through PSC are to be regarded as public servants. An application for consent from the Government is required before filing a suit against them. v) Corporation Unless it is a registered corporation, a suit cannot be filed against it. vi) Infant / Minor According to the Penal Code, a minor is a child of 9 12 years. But age of the minor varies in various Statues. vii) Unsound mind There are various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912. Negligence Essentials of negligencei) The defendant owes a duty of care to the plaintiff; ii) The defendant made a breach of that duty; and iii) The plaintiff suffered damage as a consequence thereof. i) The defendant owes a duty of care to the plaintiff It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists. Donoghue v. Stevenson A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty. Palsgraaf v. Long Island Railroad Co. The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo

CJ said, the conduct of the defendants servant was not wrong. Relatively to her it was not negligence at all. Duty depends on reasonable foreseeability of injury If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. No liability when injury is not foreseeable Glasgow Corp. v. Muir The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event. Reasonable foreseeability does not mean remote possibility Bolton v. Stone A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence. Duty of care Booker v. Wenborn (1962) - The defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform. ii) Breach of duty Breach of duty means non-observance of due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered. (a) The importance of the object to be attained K. Nagireddi v. Government of Andhra Pradesh Due to construction of a canal by the state government, all the trees of the plaintiffs orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government. (b) The magnitude of risk Kerala State Electricity Board v. Suresh Kumar A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty. (c) The amount of consideration for which services, etc. are offered Klaus Mittelbachert v. East India Hotels Ltd. the question of liability of a five star hotel

arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available. iii) The plaintiff suffered damage It is also necessary that the defendants breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendants negligence. Res ipsa loquitur- It means the things itself speaks. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. Hambrook v. Stokes Bors. Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable. Dickson v. Reuter Contributory negligence When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm. Rural Transport Service v. Bezlum Bibi (1980) The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus. Yoginder Paul Chowdhury v. Durgadas (1972) The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence. Doctrine of alternative danger There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant. Jones v. Boyce (1816) The plaintiff was a passenger of defendants coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover. Shayam Sunder v. State of Rajasthan (1974) Due to the negligence on the part of the

defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable. Negligence in our laws The Penal Code, 1860 s. 284 If anyone has custody of poisonous substance and fails to guard against probable danger is punishable with 6 month or 1000 taka or with both. s. 285 - If anyone acts rashly or negligently to endanger human life with fire or combustible substance is punishable with 6 month or 1000 taka or with both. s. 286 If anyone acts rashly or negligently to endanger human life with explosive substance is punishable with 6 month or 1000 taka or with both. s. 287 If anyone acts rashly or negligently to endanger human life with any machinery is punishable with 6 month or 1000 taka or with both. s. 288 If anyone in pulling down or repairing any building knowingly or negligently omits to guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or with both. s. 289 If anyone knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life or any probable danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with both.

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