Law of Torts - Content

[2nd Edn. 2011(Pb)]

Contents

Tort: Meaning and Definition	1
Q. What is the meaning of tort?	1
1. Definition of Tort	1
* Salmond and Heuston	1
* Clerk and Lindsell	1
* Sir Fredrick Pollock	1
* Winfield and Jolowicz	2
Q. Define Tort in the words of Winfield and Jolowicz.	2
2. Essentials of Tort	3
Q. What are the essentials of tort?	3
(a) Wrongful act or omission	4
Q. What is wrongful act or omission?	4
Example: Moral Duty	4
Example: Religious Duty	5
Damage to wall by water	5
(b) Legal Damage	5
Q. Describe legal damage. Discuss absolute and qualified damage with the help of relevant cases.	5
(c) Legal Remedy	6
3. Ubi Jus Ibi Remedium	6
4. Foundation of Tortious Liability	6
Q. Explain the two competing theories of tortious liability given by Winfield.	7
5. Conclusion	7

CHAPTER 2

Tort Compared with other Legal Liabilities

1. Tort and Crime	8
Q. Distinguish between tort and crime.	8
• Distinction between a Tort and a Crime	9
2. Tort and Contract i.e. Breach of Contract	9
Q. Do you agree with the appraisal `an action for wrongful dismissal of an employee is a breach of contract and not a tort' if your answer is in affirmative then explain it with the help of relevant cases?	9
• Distinction between a Tort and a Contract	10
Q. Describe the distinction between tort and contract.	10
3. Tort and Quasi-contract	11
• Distinction between Tort and Quasi-contract	11
4. Tort and Breach of Trust	11
5. Tort and Bailment	11
• Examples of Bailment	11

CHAPTER 3

Damnum Sine Injuria & Injuria Sine Damno (Damnum)

1. Meaning	12
• Ist Maxim:—Damnum Sine Injuria	12
Q. The decision in the case Mogul Steamship Co. v. MCGregor, Gow & Co.,establishes the principle that competition with deliberate infliction of harm afford no ground of action, unless it is done unlawfully. In light of these observations, explain the maxim `Damnum sine injuria'.	13
• IInd Maxim:—Injuria Sine Damno	13
Q. Illustrate the maxim `Injuria sine damno' with the help of relevant cases and give your views on the observation _ the person in whom the legal right is vested is entitled to bring an action and may recover damages.	13

CHAPTER 4

Some General Elements of Torts & Its Relavance

1. Acts and Omission	15
2. Voluntary and Involuntary Acts	16
Q. Distinguish between Voluntary and Involuntary Acts.	16
3. Mental Elements	16
Q. Give a comparative view on malice-in-law and malice-in-fact.	16
• Malice	16
• Motive	17
• Intention, Negligence and Recklessness	17
Q. Define intention negligence and recklessness.	17
• Fault	17
Q. Define fault with the help of relevant cases.	17

CHAPTER 5

General Principles nullifying Tortious Liability: General Defences

1. Introduction	19
2. Maxim of General Defence: Volenti non fit injuria	19
Q. Define the maxim volenti non fit injuria.	19
• Knowledge of risk	19
• Free consent	19
• Consent to illegal act	20
• Consent of minors or insane persons	20
• Breach of statutory duty	20
3. Application of the Maxim	20
Q. Discuss the application of maxim `volenti non fit injuria' with the help of relevant cases.	20
Q. "The defendant can successfully plead the maxim only when he proves that the person injured knew of the danger, appreciated it and voluntarily took the risk." Discuss this statement in the light of the observation given in the case South Indian Industries Ltd., Madras v. Alamelu Ammal.	22
4. Exceptions to the Application of the Maxim	23
5. Act of God (Vis Major or Damnum Fatale)	23
Q. Describe the `Act of God' or `vis major' with the help of relevant cases.	23
6. Inevitable Accident	25
Q. How do you differentiate accident with `inevitable accident'? Explain with the help of relevant cases.	25
7. Mistake	25
Q. What does mistake mean? Define mistake of law and mistake of fact.	25
8. Necessity	26
Q. Describe necessity with the help of the maxim `Salus populi supreme lex'.	26
9. Private Defence	26
• Defence of person	27
Q. Define private defence and describe `defence of person' and `defence of property'.	27
• Defence of property	27
10. Statutory Authority	28
Q. Defining the term `statutory authority', discuss the case Chandram Nagaram Rice & Oil Mills Ltd., Gaya v. Municipal Commissioner of Purulia.	28
• Absolute, mandatory or imperative authority	29
Q. Discuss absolute, mandatory or imperative authority.	29
11. Act of State	29
Q. Define the `Act of State' with the help of relevant cases.	29
12. Judicial Acts	31
Q. Give salient features of `Act of State' Discuss it in the light of the observation given by the Supreme Court in the case. The State of Saurashtra v. Mohammad Abdullah.	31

CHAPTER 6

Remoteness of Damage

1. Introduction	32
2. Test of Remoteness of Damage	33
Q. Define `Remoteness of Damage' What are those criteria which should precede while invoking the rule of remoteness of damage?	33
Q. Define `direct consequences' in light of the observation given by Scrutton LJ, in the case Polemis.	33
Q. What is the difference in between the judgments given in the case Polemis and Liesboch case?	33
Q. The defenders are liable for all the foreseeable consequences of their neglect—Explain this Observation of Lord Pearce in the case Hughes v. Lord Advocate.	35
3. Extent of damage	35
4. Ways or Manners of Causing the Damage	36
5. Kinds of Damage or Injury	36
Q. Upto what extent kinds of damage or injury can influence the verdict in a case? In the light of the observation given by the court in the case Tremain v. Pike define the term element of foreseeability.	36
6. Conclusion	37

CHAPTER 7

Personal Capacity

1. Introduction	38
(a) Who cannot sue?	38
* Convicts and persons in custody	38
Q. Categorise the person/entity who can sue and can be sued. Can a person who is in prison can file a writ for protection of his rights? Explain it.	38
* Alien Enemy	39
* Married Woman	39
* Husband and Wife	39
Q. Whether a wife can maintain an action against third party for the injuries committed by her husband? Discuss it with the help of relevant cases.	39
* Bankrupt or Insolvent	41
Q. Whether an employer is vicariously liable to the servant's wife for the tort of his servant? Discuss it with the help of relevant cases.	41
* Infant/Minors	41
Q. What are the rights of infants who are still in the womb of his mother?	41
Q. Can a person be held liable for causing injuries to child enventresa mere under Indian Law?	41
* Corporation	41
Q. Define corporation can it be called a legal person and be sued for its torts?	41
* Foreign Sovereigns	42
(b) Who cannot be sued?	42
* Sovereign or King	42
* Act of State	42
* Foreign Sovereign and Ambassador	43
* Infant/Minors	43
Q. Can a minor be held liable for his torts? Describe it in the light of observation given in the case Swarup Kishore v. Goverdhandas.	43
* Lunatic	43
Q. Can insanity be considered as a defence in tort? Do you agree with the statement that if the nature and quality of act are known to the defendant then no defence is available for the defendant?	44
* Drunkard	44
* Corporation	44
* Trade Union	44

CHAPTER 8

Joint Tortfeasors

1. Independent Tortfeasors & Joint Tortfeasors	45
Q. Define independent and joint-tortfeasors with suitable examples.	45
2. Joint Tortfeasors	45
3. Liability of Independent Tortfeasors	46
Q. Distinguish between liabilities of independent and joint-tortfeasors.	47
4. Liability of Joint-Tortfeasors	47
Q. What are those three circumstances in which joint liability of tortfeasors arises?	47
5. Law in India	47

CHAPTER 9

Trespass to Person

1. Introduction	48
• Assault	48
Q. Define trespass to person. What are the different kinds of trespass to person?	48
• Battery	49
Q. What is battery? Distinguish it with assault. What are the ingredients to constitute a battery?	49
* Defence against Assault & Battery	50
Q. What are the defences available against assault and battery?	50
• Mayhem or Maim	50
• False imprisonment	50
* Total restraint	51
* Knowledge of Plaintiff	51
* Partial restraint	51
Q. What is partial restraint? Discuss it with the help of the case Maharani of Nabha v. Province of Madras.	51
* Detention without lawful justification	52
2. Defences	52
• Reasonable condition	52
• Judicial Authority	52
• Arrest by Police	53
• Arrest on complaint before a judicial officer	53
3. Remedies	53
Q. What are the remedies available against the false imprisonment?	53

CHAPTER 10

Trespass to Land

1. Introduction	54
2. Possession	54
Q. Define possession. Distinguish between possession-in-fact and possess-in-law.	54
3. Trespass	55
4. Entry-Must in trespass	55
Q. 'A person is thrown upon the other main's land by someone else'—Can it be said that it is a trespass?	55
5. Trespass on Highway	55
6. Trespass in the airspace	56
7. Trespass ab initio	56
Q. Discuss the following	56
(a) Trespass in the airspace	56
(b) Trespass ab initio	56
(c) Continuing trespass	56
8. Continuing Trespass	56
9. Entry with Licence	56
Q. Define licence with the help of relevant case.	57
10. Remedies	57
• Right to re-enter	57
• Action for ejectment or recovery of land	57
• Distress damage feasant	58

CHAPTER 11

Trespass to Goods and Conversion

1. Trespass to Goods	59
Q. Define trespass to goods with the help of relevant cases.	59
2. Defences	60
3. Remedies	60
Q. Explain detinue and elaborate what was lacking from this defence; give the salient features of Interference with Goods Act, 1977 which allows for conversion remedies.	60
4. Conversion	61
Q. Describe conversion and details about its type.	61
• Conversion by Taking	61
• Conversion by parting with goods	61
• Conversion by sale of goods	61
• Wrongful retention of goods	62
• Demand and Refusal	62
• Wrongful destruction of goods/property	62
• When the lawful owner's right is denied	62
5. Defence to conversion	62
6. Remedies	63
Q. What are the remedies against conversion?	63
Damages	63
Re-delivery	63
7. Distinction between Trespass and Conversion	63
Q. Distinguish between trespass and conversion.	63

CHAPTER 12

Torts Affecting Domestic and Service Relationship

1. Introduction	64
2. Husband and Wife	64
• Enticement	64
Q. What are the types of torts which affect domestic and service relationship?	64
• Adultery or Criminal conversation	65
Q. In Indian law, ignorance of defendant that the woman was married is a good defence in case of adultery. Upto what extent you agree with this statement—Explain.	65
• Action for personal injuries	65
3. Parents and Children	65
Q. What are the parental rights? Explain it with the help of relevant cases.	65
4. Master and Servant	66

CHAPTER 13

Negligence

1. Introduction	67
Q. Define negligence and discuss two theories—subjective and objective theories with the help of relevant cases.	67
2. Meaning	67
3. Essential Ingredients of Negligence	67
Q. What are the essentials of constituty a negligence?	68
Q. Describe the important principle of determining a duty as laid down by Lord Atkin in the case Donoghue v. Stevenson.	68
4. Burden of proof in an action for negligence	69
Q. Elaborate "burden of proof" in an action for negligence.	69
5. Defences for Negligence	69
• Contributory Negligence	69
• Vis Major or Act of God	69
Q. What are the defences available against the act of negligence?	69
• Inevitable Accident	70
6. The maxim: Res ipsa loquitur	70
Q. Explain the maxim_ Res ipsa loquitur with the help of relevant cases.	70
• The thing causing the damage must be under the control of the defendant or his servant	70
• The accident must be such as could not in the ordinary course of things have happened without negligence	70
• An important case on this point	71
Q. 'The accident must be such as could not in the ordinary course of things have happened without negligence.' Describe it in the light of judgment given in the case M.C.D. v. Subhagwanti.	71
• The burden on the defendant	71
7. Consequent damage	72
• Application of the Donoghue principle	72
Q. Discuss the application of Donoghue principle in the following cases—	72
(a) Grant v. Australian Knitting Mills	72
(b) Malfoot v. Noxal Ltd.	72
(c) P.V.C. Thakaran v. K. Narayanan	72
8. Negligence: Legal profession	73
Q. Describe Halsbury's law vis-a-vis negligence in legal profession.	73
9. Negligence: Medical Profession	74
Q. Describe negligence in medical profession. What are those duties which a doctor owes to a patient?	74

CHAPTER 14

Nervous Shock

1. Introduction	76
2. Meaning and Principles	76
Q. "The shock wkhere it operates must be a shock which arises from a reasonable fear to immediate personal injury to oneself". Do you agree with limitation of liability as propounded by Justice Kennedy in the case of `Dulieu v. White'?	76
Q. The defendant owed a duty of care to the boy and not to the mother. What were the observation of the Judges (Singleton, L.J.; MC Nair, J.; and Denning, L.J.) in the case Kings v. Philips?	78
Observation of Judges in this case:	78
3. Conclusion	79

CHAPTER 15

Contributory Negligence

1. Introduction	80
Q. Define contributory negligence. What is the role of plaintiff in succeeding in the case of contributory negligence?	80
Q. Why it was thought that the vardict given in the case of Butterfield v.Forrester was not in favour of victim?	80
Q. Discuss the role given in the case Devis v. Mann.	81
2. Apportionment of Damages	81
3. Doctrine of alternative danger and contributory negligence	82
Q. What is doctrine of alternative danger? Explain it with the help of the case Jones v. Boyce.	82
4. Contributory negligence by the children	82
Q. What is the status of contributory negligence committed by children.Explain it with the help of relevant cases?	83
5. Doctrine of Identification	83
Q. Discuss doctrine of identification with the help of relevant case.	83
6. Burden of Proving Contributory Negligence	83
7. Composite negligence and nature of liability in composite negligence	84

CHAPTER 16

Liability of the Occupiers for Dangerous Premises

1. Introduction	85
2. Premises	85
3. Occupier	85
Q. What are the liabilities of occupier towards visitors or entrants?	85
4. Visitor	86
Q. Define the terms:	86
(a) Premises;	86
(b) Occupier;	86
(c) Visitor	86
Q. Is there any difference between the liabilities of occupier of a premises towards an invitee and a trespasser?	86
5. Duty of the occupier to visitors	86
Q. What are the duties of occupier to visitors as per section 2(2) and 2(3) of the Occupier's Liability Act, 1957. Discuss it with the help of relevant cases.	86
• Adult or Child Visitor	87
• Specialist Visitor	87
6. Structure adjoining the highway	87
7. Occupier's liability towards trespassers	88
Q. What are the occupier's liability towards trespassers?	88

CHAPTER 17

Vicarious Liability

1. Introduction	89
Q. Define vicarious liability. What are the circumstances, where the liability attaches to a person for the wrong committed by others?	89
2. Liability by Ratification	89
3. Liability Arising out of Special Relationship	90
• Principal and Agent	90
Q. Elaborate the liability of a person who allows his vehicle to be driven by someone else.	90
• Partners	91
Q. Define the following terms:	91
(a) partners	91
(b) principal and agent	91
(c) master and servant	91
• Master and Servant	91
* Who is a servant?	91
* Lending a servant	92
Q. Whether an employer would be held liable if he lends his servant to someone else and the servant commits a tort?	92
Q. Many factors have bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind?	92
Q. If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, the original owner can avoid his liability?	93
* The Scope of Employment	93
Q. Wrong may be committed due to the servant's negligence while carrying out the orders of the master.	93
* Carelessness of servant	93
* Mistake of Servant	93
* Fraud of Servant	94
Q. Who will be held responsible of a servant commits a fraud?	94
* Theft by Servant	94
* Outside the course of employment	94
* Lift to an unauthorised person	95
* Delegation of Duty by Servant	95
Q. Elaborate delegation of duty by servant.	95
* Express prohibition by master	96
* Servant and independent contractor	96
Q. Is master liable for any tort committed by independent contractor?	96
4. Doctrine of Common Employment	97
Q. What is doctrine of common employment?	97

CHAPTER 18

Vicarious Liability of the State

1. Introduction	98
Q. What do you understand by the vicarious liability of State? Explain if with the help of relevant cases.	98
Q. Describe the Peninsular case. Is it justified to invoke the principle of this case as laid down by Sir Barves Peacock, C.J. today when the circumstances are different from that of 118 years back?	99
Q. Describe the case Secretary of State v. Haribhanji and compare it with the peninsular case.	100
Q. Describe Supreme Court's approach in the case Kasturi Lal v. State of Uttar Pradesh regarding liability of State while exercising its sovereign powers.	101
2. Acts Committed in Exercise of Sovereign Powers	102
Q. With the help of relevant cases define the acts committed by State or its officials while exercising sovereign powers.	102
3. Acts Committed in Exercise of Non-sovereign Powers	102
4. New Development in Waiting	103
5. Conclusion	104

CHAPTER 19

Defamation

1. Introduction	105
Q. Discuss defamation distinguish in between libel and slander.	105
2. Distinction between Libel and Slander	105
3. Essentials of Defamation	106
• False and Defamatory Statement	106
Q. What are the essentials of constituty a defamation against someone? Discuss with the help of some relevant cases.	106
• Knowledge or intention of defendant and its impact	107
Q. Knowledge or intention of defendant is how much important in the case of defamation?	107
• Publication of the statement	107
Q. In the eyes of law husband and wife are one but it will remain so if husband writes something defamatory against his wife. When they are estranged?	108
• Reference to the plaintiff	108
4. Defamation of a class of persons	109
Q. What do you mean by defamation of a class of persons?	109
5. Defamation of a deceased person	109
6. Defences	109
Q. What are the defences available against the case of defamation?	109
• Justification	109
• Fair Comment	110
• Privilege	110
Q. What is privilege? What are its types? Discuss it with the relevant cases as its examples.	110
Q. Discuss the points discussed in the case of Tushar Ghosh v. Bina Bhowmic vis-a-vis statement published in protection of common interest.	112
Q. "The intention was not to serve the public interest but to expose the plaintiff" Do you agree with the judge's observation in the case R.K. Karanjia v. Krishna Raj M.D. Thackersey?	113
7. Publication of Parliamentary, judicial or other public proceedings	113

CHAPTER 20

Nuisance

1. Introduction	114
2. Public Nuisance	114
Q. Define nuisance and discuss its types with the help of relevant cases.	114
3. Private Nuisance	115
• Undue or unreasonable interference	115
Q. What is undue or unreasonable interference? Elaborate it with the help of relevant cases.	115
• Intention (Malice)	116
• Interference with the use or enjoyment of property	116
Q. Is it true that damage to property due to an unauthorized interference constitutes a nuisance?	116
Q. If there is substantial interference with a man's comfort or health the action for injury arises. Substantiate it with elaboration in view of the judgment in the case Brijbala Prasad v. Patna Municipal Corporation?	118
• Damage	118
4. Defences	119
• Prescription	119
• Statutory Authority	119
5. Remedies	119
• Abatment	119
• Injunction	119
• Damages	119
6. Distinction between private and public nuisance	120
7. Distinction between nuisance and trespass	120

CHAPTER 21

Strict Liability and Absolute Liability

1. Meaning	121
Q. What is the meaning of strict liability? Is it different from the absolute liability as propounded by Justice Blackburn in the case Rylands v. Fletcher? Explain it.	121
• Rule in Rylands v. Fletcher, 1868 LR 330	121
• Escape	122
Q. What are those two rules which require to be proved in order to apply the rule as laid down by Justice Blackburn in the case of Rylands v. Fletcher?	122
• Non-Natural use of land	122
• Negligence of an independent contractor	123
2. Defences to the Rule (Exceptions to the Rule)	123
• Default of the plaintiff	123
Q. What are defences available to the rule which have been recognized in Rylands v. Fletcher case?	124
• Consent of the plaintiff	124
• Common Benefit	124
• Act of stranger	124
• Act of God	124
• Statutory Authority	124
Q. Describe statutory authority with the help of relevant cases.	124
3. Absolute Liability: A new beginning in India	125
Q. Describe absolute liability in the light of observation made by the Court in the case M.C. Mehta v. Union of India (Shriram case). How does it differ from the rule as laid down in the case Rylands v. Fletcher?	126

CHAPTER 22

Liability for Dangerous Animals

1. Introduction	128
Q. What are the types of animals which can be held responsible if they make a trespass?	128
2. Cattle Trespass	129
• Scienter Rule	129
Q. Define the scienter Rule with the help of relevant cases.	129
• Animals Act, 1971	129
Q. Describe in brief the salient features of the Animals Act, 1971 with the help of relevant cases.	129
• Cattle Trespass Act, 1871	130

CHAPTER 23

Malicious Prosecution

1. Introduction	131
Q. Define malicious prosecution.	131
2. Malice, Malice in fact and Malice in law	131
3. Essentials of Malicious Prosecution	131
Q. Describe prosecution with the help of relevant cases.	132
Q. What are the essentials that have to be proved by the plaintiff in an action for malicious prosecution?	132
• Prosecution by the defendant	133
• Proceedings terminated in favour of Plaintiff	133
• Prosecution instituted against plaintiff without any reasonable and probable cause	133
Q. Citing the case of Hicks v. Faulkner describe about prosecution without reasonable and probable case.	133
• Prosecution was instituted with malicious intention	134
• Damages for malicious prosecution	134

CHAPTER 24

Death in Relation to Tort

1. Introduction	135
2. Survival of actions	135
Q. Describe `survival of actions' in the light of provisions given in section 360 of the Indian Succession Act, 1925.	135
3. Loss to dependants	136
Q. Define loss of dependants with the help of relevant cases.	136
4. Deductions	138

CHAPTER 25

Remedies

1. Introduction	139
Q. Define remedies and discuss its types.	139
2. Damages	139
• Contemptuous damages/Derisory damages	139
Q. Describe damages and discuss its types.	139
• Nominal damages	139
• Ordinary, aggravated and exemplary damages	140
• Prospective damages	140
• Assessment of damages for personal injuries	141
• Damages for shortened expectation of life	141
• Damages for loss of consortium	141
3. Injunction	141

CHAPTER 26

The Consumer Protection Act, 1986

1. Objects and Reasons	142
2. Definitions and scope	142
• Complainant	142
• Complaint	143
Q. What is the difference between unfair trade practices and restrictive trade practices?	144
* Unfair Trade Practice or Restrictive Trade Practice	144
* 'Goods' suffer from defects	146
* Deficiency in service	147
* Trader charged price in excess	147
* Goods hazardous to life and safety	148
• Consumer	148
• Goods Purchased for consideration [Section 2(1)(d)(i)]	149
• Goods Purchased for re-sale or commercial purpose	149
3. Deficiency in services: Some cases	149
• Airlines	149
* Cancellation of flight	150
Q. Define `deficiency in services' with the help of some relevant cases.	150
• Bank	150
• Electricity	150
* Defective Meter	150
* Disruption of electricity	150
* Fluctuations in voltage	150
• Insurance	151
* Insurance Claims	151
• Medical Profession	151
Q. Whether to keep the `medical profession' in the category of `service' is justified? Elaborate if in term of the provision given in section 12(1)(o) of the Consumer Protection Act. Give some examples of cases related with it.	151
• Legal Profession	152
• Railways	152
* Passenger's death	152
• Telephone	153
4. Consumer Protection Councils	153
• Members of Consumer Protection Councils	153
• Term of the Council	154
• Meetings	154
• State Consumer Protection Council	154
5. Consumer Disputes Redressal Agencies	154
• District Forum	154
* Composition of the District Forum	155
Q. What is the composition of the District Forum and procedure of appointment of its President and two other Members?	155
* Procedure of appointment	155
* Terms and conditions of office	155
* Jurisdiction of District Forum (Section 11)	155
* Who can file complaint (Section 12)	156
* Procedure on receipt of complaint (Section 13)	156
* Findings of District forum (Section 14)	158
* Conduct of Proceedings and Quorum	159
* Appeals (Section 15)	159
• State Commission (Section 16)	159
* Composition of the State Commission	159
Q. What is the composition of State Commissions?	159
* Salary and Terms of the Office	160
* Jurisdiction (Section 17)	160
* Appeals (Section 19)	161
6. National Commission (Section 20)	161
Q. Explain in in length the Composition of National Commission	161
• Jurisdiction of the National Commission (Section 21)	163
• Powers and Procedure of National Commission (Section 22)	163
• Appeal (Section 23)	164
• Finality of Order (Section 24)	164
• Administrative Control by National Commission (Section 24B)	165
7. Enforcement of Orders (Section 25)	165
8. Dismissal of frivolous or vexatious complaints (Section 26)	166
9. Penalties (Section 27)	166
10. Some Miscellaneous Provisions (Section 28)	166
11. Power to remove difficulties (Section 29)	166
12. Vacancies or defects in appointment not to invalidate orders (Section 29A)	167
13. Powers to make rules (Sections 30, 30A & 31)	167

CHAPTER 27

Model Questions with Answers

168

• Table of Cases

174