1st One Draft New Torts.docx

CHAPTER -1 Introduction to Law of Torts The word “Tort” has been derived from the Latin word “tortum” meaning twisted or crooked or simply conduct which is not correct. It is often said that a tort is a wrong which is not a crime, which is not a breach of contract or a breach of trust. Like all other wrongs, tort is a wrongful act whereby the wrongdoer commits the breach of a legal right vested in some individual. Tort is a civil wrong, but not all civil wrongs are torts. Thus, generally speaking, though loosely, those civil wrongs which do not fit in any defined category of civil wrongs are torts. Definition of tort:Tort is a civil wrong which is redress able by an action for unliquidated damages. The aforementioned definition highlights two characteristics of torts, namely: 1. Torts are civil wrongs 2. The remedy for torts lies in unliquidated damages. 1. Civil wrongs Civil wrongs are the wrongs which are petty in nature and everyone has committed at some point of time in their lives, for example, parking your car in a wrongful manner so as to cause traffic jams, breaking cameras in your school, etc. To understand civil wrongs properly; we need to distinguish between civil and criminal wrongs. Following are the differences between the Civil and Criminal wrongs: 1.

Civil wrongs are less grievous in nature in comparison to the criminal wrongs.

2. In the civil wrongs; there is an infringement of the private or civil right of an individual; whereas the criminal wrongs are breach of public rights which affects the whole society. 3. A civil wrong is committed against an individual; thus, the action is taken against the particular individual only. Whereas, in case of the criminal wrong, since the aggrieved party is the society, therefore the action is taken by the representatives of the society i.e. the government.

2.

Damages

The damages refer to the monetary compensation; paid to the plaintiff for the loss suffered thereby. 3. Unliquidated damages Damages are also of two kinds: unliquidated and liquidated damages. Liquidated damages are the damages which can be decided previous to injury. For example, in case of the contracts. Unliquidated damages are the damages which can’t be decided before the happening of injury. For example, in case of torts. ESSENTIAL OF TORTS: 1. Wrongful act or wrongful omissions Torts can be caused by an act or an omission on the part of the defendant. However, if the act complained of doesn’t violate legal rights of another person, it is not a tort. Violation of the moral, religious and social duties doesn’t come under tort. 2. Injury: Mere act or omission or failure to perform a duty doesn’t consists of a tort, unless it results in some injury to the person suing; i.e. violation of his legal rights. #Legal Rights: Legal rights are those rights which are protected and provided by the law. E.g. it’s your legal right that no one should disturb you at so if your neighbor plays loud music at odd hours; it’s an example of an injury.

Damage vs damages vs legal rights Legal injury refers to the violation of the plaintiff’s legal rights whereas the idea of damage conveys the idea of a mere wrong which isn’t actionable in law. Damages are the monetary compensation provided to the plaintiff by the defendant for causing the violation of the legal rights of the plaintiff.

# Injuries sine demon vs. Damno sine injuria Injuria sine damno:

This means legal injury without any damage; i.e. there is violation of the legal rights, even though the act of the party causes no harm or damage to the other. In this case, action can be filed and damages can be claimed. Ashby v White; wherein the plaintiff was an eligible voter at a parliamentary election, but the defendant, a returning officer wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote for won. But it was the violation of the legal rights of the plaintiff and thus he was entitled to get damages. Damnum sine injuria: This means damage without any legal injury i.e. there is no violation of the legal rights but despite that there is damage or loss to the plaintiff. It is not actionable in the court of law and thus no damages can be claimed. In Gloucester grammar school case; the defendant set up a rival school in front of the school of plaintiff. Because of the competition; the plaintiff school had to reduce its fees, and consequently suffered major losses. In this case; although damages have been suffered by the plaintiff but since there is no legal injury caused to the rival school; there shall be no cause or action against the defendants. 3. Legal Remedy The maxim “ubi jus ibi remedium” i.e. where there is a right, there is a remedy, means that whenever a right has been violated, the person whose right has been infringed has a remedy against the person so violating his right. Torts are a civil wrong for which the remedy is an action for unliquidated damages. Thus, the main action for a tort is an action for damages. There are other remedies too; but an action for unliquidated damages is an essential characteristic of remedy for torts.

CHAPTER- 2 General defenses (The general exceptions are spread across Section 76-106 of the Indian Penal code) The current chapter talks about the exceptions to the basic rule of the tort i.e. if you have violated any legal right, you are held liable to pay damages.

What are general defenses? (Section 76-106 of the Indian Penal code)

General defenses can be best defined as the exceptions, and are given under(Section 76-106 of the Indian Penal code) which are generally accepted by the law and practiced all over the world. When the plaintiff brings an action against the defendant proving that all the essentials of the tort are present; the defendant is liable for the same. But even in this case, the defendant can avoid his liability by taking the plea of some defence. There are two types of defenses: 1.

The specific defenses

2.

The general defenses

The specific defenses are applicable to some particular wrongs, for example, in case of defamation; the defenses of fair comment or truth are available. There are general defenses which can be taken against a number of wrongs. For example, the general defense of ‘Consent’ may be taken; where the action is for trespass, defamation, false imprisonment or some other wrong. The various general defenses are: 1. Volenti non fit injuria or the defence of consent 2. Plaintiff or the wrongdoer 3. Inevitable accident 4. Act of god 5. Private defence (Section 96-106 of the Indian Penal code) 6. Mistake 7. Necessity 8. Statutory authority 1. VOLENTI NON FIT INJURIA: Volenti non fit injuria, hereinafter as VNFI, is Latin phrase which means, one who takes risk by himself, can blame others for the same. The logic behind the rule is that since the person has consented to the infliction of some harm upon himself, he shall have no remedy for that against anyone else. Essentials of VNFI:

There are two essentials of VNFI, first that the plaintiff undertook the risk voluntarily and second the person had the knowledge of the risk. Voluntarily taking risk: This means that the plaintiff must have given the consent to the risk at his own free will, without any fraud or compulsion or under some mistaken impression, such consent does not serve as a good defence. Moreover the act done by the defendant must be the same for which he has given his consent. Thus, if you have invited a person to your home, you can’t go the court saying that the person has committed trespass. But if the visitor goes to the home without any invitation; he has committed trespass. Consent to suffer the harm may be express or implied Many a time, the consent may be implied or inferred from the conduct of the parties. For example; the player in the games of cricket or football is deemed to be agreeing to any hurt which is likely in the normal course of the game. If a person is injured in an attempt to stop a restive house of another on a “cry” for help; he has no right of action and he cannot be permitted to say, “ I knew the horse would plunge, but I did not know how much would it plunge”. For the defence of consent; the act causing the harm must not go beyond the consent of the person. Consent by others: When a person is incapable of giving the consent based on minority or his insanity; then the consent of their parents or guardians is sufficient in such cases. Consent obtained under fraud or compulsion: If the consent of the plaintiff is obtained by fraud; it is not any defence of VNFI. Similarly; the consent given under the circumstance when the person doesn’t have the freedom of choice doesn’t constitutes as the voluntary consent of the person and thus the concept of VNFI doesn’t applies. A person, however may be compelled by some forces to undertake the risk knowingly; which if he had a free choice wouldn’t have been chose. 2. Knowledge: For this maxim to be applied; two things have to be proven: 1. The plaintiff knew that the risk is there.

2. He, knowing the same, agreed to suffer the same. The above two points are very important to be proven so that the defence can be used. 2. PLAINTIFF THE WRONGDOER: If the plaintiff is himself the wrongdoer and has suffered damage because of his fault or wrongdoings, then the defendant can’t be held liable for the same. Say for example if a thief enters a house and the dog bites him; he can’t recover damages from me because he himself is a wrongdoer. #Unnecessary injuries, not defendable: The mere fact that the plaintiff is a wrongdoer doesn’t entitle the defendant an absolute right to cause injuries to the plaintiff. 3. INEVITABLE ACCIDENT: Unexpected accident and if the same couldn’t have been avoided and foreseen, in spite of reasonable care on the part of the defendant, it is inevitable accident. It does not mean an absolutely inevitable accident rather it means an accident which couldn’t have been avoided even after taking reasonable precautions; which a man of ordinary prudence would take in such situations. It is a very good defence, if the defendant can show that he neither intended to injure the plaintiff nor could he avoid the injury by taking reasonable care. 4. ACT OF GOD: Act of god is the simplest of all defenses. Act of god is a kind of inevitable accident with the difference that in the case of act of god, the resulting loss arises out of working of natural forces like exceptionally heavy rainfall, storms, tides and volcanic eruptions. An act of god, in the legal sense may be defined as an extraordinary occurrence of circumstances, which couldn’t have been foreseen an which could have been guarded against, or, more accurately, as an accident due to a natural cause, directly and exclusively, without human intervention, and which could not have been avoided by an amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it. Essentials of Act of God; Two important essentials are needed for this defence:

1. There must be working of the natural forces. 2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against. Note: - The occurrence must be extraordinary. Nichols V Marsland: This illustrates that the occurrence must be extra ordinary. Here in the rainfall was extraordinary heavy, and could not be anticipated and hence was called a fit case of act of God on the other hand if the rainfall is a normal one which could be expected in a certain area, the defence of the act of the God cannot be pleaded. 5. PRIVATE DEFENCE: (Section 96-106 of the Indian Penal code) Every person has the right to protect his property and/or his person and he can use necessary force for the purpose. Private defence or self- defence is a good defence in an action for tort as well. The doctrine of private defence is based on the idea of self-preservation i.e. every human being has a basic right to safeguard himself even if it involves violation of someone else’s legal rights, but to some lawfully permissible limits. Essentials of Private Defence There are two essentials namely; 1. The use of force in private defence should be reasonable. 2. The use of force is allowed only when there is imminent danger or threat to the safety of person or property. 1. Reasonable force: The force used must be reasonable to protect one’s property. If the defendant uses the force which is permissible, he will not be held liable for the harm caused thereby. 2. Imminent danger: There should be an imminent threat to the personal safety or property, e.g. A would not be justified in using force against B, merely because he thinks that B would attack him some day, nor can the force be justified by way of retaliation after the attack is already over.

6. MISTAKE:

Mistake is generally no defence to an action for tort. When a person willfully interferes with the right of another person, it is no defence to say that he had honestly believed that there was some justification for the same; while in fact there was none. However, while entering into some other person’s land thinking it to be his own or taking the umbrella it to be your own; in these situations, the plea of self defence can be used. 7. NECESSITY: The defence of necessity means that the act is done under the necessity to prevent a greater evil or harm. Even if the harm is done intentionally, in such cases, no liability arises. There is a distinction between the defence of necessity and private defence. In the former, the harm is inflicted on an innocent person, while in the latter, harm or injury is inflicted on the person who is claiming relief. plaintiff. 8. STATUTORY AUTHORITY: One cannot bring an action for tort if he suffers damage caused by an act done under the authority of the legislature when harm results from such an act, the injured party can claim only such damages or compensation as provided by the statute.

Chapter-3 VICARIOUS LIABILITY In this chapter titled “VICARIOUS LIABILITY”, we will read one peculiar situation under law of torts wherein a person may be held liable for the acts of others. The term “vicarious” means indirect or on behalf of someone; so reading the two words together coveys the meaning indirect liability or liability which is indirect in character or simply; the liability which is for the acts of the other or on behalf of someone else. We shall discuss it in reference to the three relationships that commonly exist:

Master Servant Relationship

Principal Agent Relationship

Relationship between parties

Generally a person isn’t held liable for the acts of the other persons but in certain cases; there can be vicarious liability, wherein other person can be held liable for the acts of others. But in order to make one person liable for the acts of the other person; there must be some sort of relationship between them. The common examples of such liability are:1. Liability of principal for the tort of his agent 2. Liability of partners of each other’s tort 3. Liability of the master for the tort of his agent. 1. Principal and agent: (Section 182 of the Indian Contract Act, 1872) Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that person who has authorized it. It is based on the general principle “qui facet per alum facet per se” which means that the act of an agent is the act of the principal. For any act authorized by the principal and done by the agent both of them are liable. Their liability is joint and several. In Trilok Sigh V. Kailash Bharti, which the owner of the motor cycle was outside the country, his younger brother took the motor cycle without his knowledge or permission and caused the accident. It

was held that the younger brother could not be deemed as the agent of the owner of the motorcycle and the latter could not be vicariously liable for the accident. 2. Partners: The relationship between partners is same as that of principal and agent. The rules of the law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, all the other partners are liable. The liability of each partner is joint and several. In Hamlyn v Houston& Co. one of the two partners of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of the contract with his employer by divulging secrets relating to his employer’s business. It was held that both the partners of the firm were liable for this wrongful act committed by only one of them. 3. Master and Servant: If a servant does wrongful act in the course of employment, the matter is liable for it. The servant, of course, is also liable. It also derives validity from the maxim qui facit per alium facit per se, which means ‘he who does an act through another is deemed in law to do it himself”. Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several as they are considered tortfeasors. Why only the Masters: The superior has the responsibility for anything done by the servants as they are in a better position than the servants to meet the claim because of their larger pockets and also their ability to pass the burden on the insurance. The liability of the masters arises even when the servants have worked against the implied instructions and for no benefit of the master. Essential of the Vicarious Liability: 1. The tort was committed by the ‘servant’. 2. The servant committed the tort in the ‘course of employment’. Who is a servant?

Though in our day to day life the term ‘servant’ is narrowly construed and includes a small number of people such as the maid who comes to our houses, the chauffer, the gardener, but in the legal sense a servant is the person who has been employed by another person to do some work for him under the directions and control of his master. The two rules to identify whether a person working for another is a servant or not1. The hire and fire rule 2. The direction and control test The first test provides that a servant is the person who can be hired and fired at the discretion of the master i.e. his services can be terminated by the master. The second test lays down that the servant is under the discretion of his master and thus the servant is bound to follow the directions of the master along with his discretion of the master as regards the manner of doing the work and things incidental thereon. The course of employment The second essential requires that the act must be done within the course of employment. The master can’t be held liable for all the acts of the servant; rather he can be made liable for only those acts of the servant which are done within the course of employment. The liability of the master isn’t limited to only those acts which he expressly authorizes to be done but he is liable for such torts which are committed within the course of employment, though may not be expressly authorized by the master. An act is done in the course of employment if it is either a wrongful act authorized by the master, or a wrongful and an unauthorized mode of doing some act authorized by the master. So, a master can be made liable as much for the unauthorized act for the acts he has authorized

Acts done by the servant

authorised acts

Done wrongly( Master Liable)

Done in Rightful manner (Master Liable)

unauthorised acts

Master Not liable

Acts outside the course of employment When a servant does something which isn’t within the course of employment; the master can’t be held liable for the same. Negligent delegation of the work: If a servant negligently delegate his authority and instead of him carefully performing the work; allows someone else to perform it and that person performs the work negligently, the master will be held liable for this act.

CHAPTER-4 NEGLIGENCE Negligence can be defined by two ways; 1. Negligence, as a mode of committing other torts, such as carelessly committing trespass, nuisance, etc. 2. Negligence as a separate tort. Here it means such as conduct which creates a risk of causing damage.

Essentials of negligence: There are two essentials of negligence: 1. The defendant had a duty of care towards plaintiff. 2. Breach of that duty on the part of the defendant. 3. Damage suffered by the plaintiff as consequence of the breach of duty. 1. Duty of care towards the plaintiff. It means a legal duty and not a mere religious, social and moral duty. It is the duty of the plaintiff to establish that the defendant had to perform some duty and there was a breach of duty on the part of the defendant. How to calculate such duty of care? There is no general rule of law defining such duty, it depends on each case whether such a duty exists. The duty to take care arises out of various relationships which may not be possible to enumerate exhaustively and the courts recognize new duties when they think that to be just on the scales of law and justice. The criterion to define such a duty was laid by the hon’ble justice Lord Atkn in the following case: Donoghue v/s Stevenson. Plaintiff brought action to recover damages from defendant, a manufacturer of aerated waters, for injuries he suffered as a result of consuming a part of the contents of a bottle of ginger beer, manufactured by the defendant, and which contained the decomposed remains of a snail. The bottle of ginger beer had been purchased from a retailer, for her, by a friend. The bottle was of made up dark colored opaque glass, sealed with a metal cap. The plaintiff claimed that it was defendant’s duty to have a system of work and inspection sufficient enough to prevent snails or for that matter any foreign substance from getting into ginger beer bottles. The question is whether the manufacturer of the drink, as he sold it to the distributor, in the circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any such defect, is under a legal duty to the ultimate purchaser or the consumer? Isn’t it his responsible to take reasonable care of the articles manufactured to be free from any defect likely to cause injury to health? The hon’ble court laid down the following proposition to decide the liability as regards the aforementioned issues.

There are two terms that you need to lay emphasis upon, firstly that you owe this duty of care towards your ‘neighbor’, so you need to understand who all can fall under this category. Secondly your duty extends only up to those things which you can ‘reasonably foresee’. 1. Neighbors: The term neighbor doesn’t mean people who live adjacent to your house; rather it’s a very wide term and includes any person so closely and directly affected by your acts that you ought reasonably to have them in contemplations being so affected when you are directing your mind to the acts or omissions which are called in questions. 2. Reasonable foresight: Whether the defendant owes a duty of care to the plaintiff or not depends on the reasonable foresee ability of the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably foresee injury to the plaintiff arising out of his acts or omissions, he owes a duty to prevent that injury and failure to do that makes him liable. Breach of duty: breach of duty means non-observance of due care which is required in a particular situation. What is the standard of care required? The standard is that of a reasonable, man or a man of an ordinary prudence. Standard of care required: The concerned should take the required standard of care while performing any work. Damage It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff also has to show that the damage caused as consequence of the defendant’s negligence isn’t too remote. Contributory negligence and Composite negligence Contributory negligence When the plaintiff by his own want of care contribute to the damages caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. Composite negligence When the negligence of two or more persons results in the same damage, there is said to be “Composite negligence” and the persons responsible for causing such damage are known as “Composite negligence”.

CHAPTER-5 TRESSPASS Trespass means to go beyond the limits of what is considered right or moral or to do something wrong or to transgress. Another popular meaning is to go into someone else’s land or property without the permission or right. Talking in reference to torts; trespass is of two kinds:  

Trespass to land Trespass to person 1. Trespass to land: trespass to person simply means to enter into someone else’s land or property without prior permission or without a reasonable caus. 2. Trespass to person: trespass to person is of two kinds: 1. Assault (Section 351 of Indian Penal Code) 2. Battery 3. False imprisonment

Battery Battery as a tort means use of force against an indivual without a lawful justification. Its essential requirements are: (i) There should be use of force (ii) The same should be, without any lawful justification. (i)

Use of force

The first and the foremost requirement is that there is use of force, even if the force is used is very trivial and doesn’t cause any harm. Physical hurt need not be there. (ii)

Without lawful justification

It is essential that the use of force should be intentional and without any lawful justification. Harm which is unintentional or caused by pure accident is also not actionable.

Assault (Section 351 of Indian Penal Code) If battery is actual use of physical force. Assault is merely an apprehension of force. Any act of the defendant which causes to the plaintiff reasonable apprehension of the battery on him by the defendant can be called as the assault. Example: pointing a loaded gun at another is an assault. Ability to cause assault: It is also essential that there should be prima facie capacity to do the harm. If the fist or the stick is shown from a distance that the threat can’t be executed, there is no assault False imprisonment False imprisonment consists in the imposition of a total restraint for some period, however short, however short, upon the liberty of another, without sufficient lawful justification. To constitute this, the imprisonment in the ordinary sense isn’t required, for example, when a person is deprived of his personal liberty, whether by being confined within the four walls or by being prevented from leaving his own house; it falls under the category of false imprisonment. Total restraint In case of the false imprisonment it is essential that the plaintiff is restrained completely i.e. he is prevented from going in any direction whatsoever. To constitute it; the person must have been completely deprived of his personal liberty.

CHAPTER – 6 DEFAMATION (Section 499 of Indian Penal Code)) (Section 499 of Indian Penal Code) says Defamation:- Writing or saying something that damages one’s reputation. If a person injures the reputation of another, he does so at his own risk, as in the case of interference with the property. Libel and Slander Actions for defamation is divided into two parts: Libel: It means that the representation is made in some permanent form.

Slander: it means publication of a defamatory statement in a transient form or a non permanent form. Essential of defamation 1. The statement must be defamatory 2. The said statement must be referred to a plaintiff. 3. The statement must be published 1) The statement of must be defamatory: The first and the very important essential for liability under the tort of defamation is that the statement made must be ‘defamatory’. A defamatory statement is one which tends to injure the reputation of the plaintiff in the eyes of general members of the society. INNUENDO Innuendo are innocent looking statements which convey a hidden defamatory meaning. These may prima facie be innocent but because of some latent or secondary meaning they are defamatory. If the plaintiff wants to bring an action for defamation, he must prove the latent or the secondary meaning i.e. the innuendo, which make the statement defamatory. The role of intention: Intention is of no consequence in the law of torts and defamation is no exception to it. When the words are defamatory then the person to whom the defamatory statement is published is said to be defamed 2.The statement must be refer to the plaintiff: The statement must refer to the plaintiff in particular. If the person to whom the statement has been published could reasonably infer that the statement has been referred to plaintiff; the defendant is nevertheless is liable. 3.The statement is published: The statement has to be published in the form of a defamatory statement. Publication doesn’t mean publication in some print media. It means that the communication must be done to some third person/party for the purpose of injuring the plaintiff’s reputation in front of the third party.

Defenses: There are three defenses to defamation: 1. Justification or truth: Truth is a complete defence in case of the civil action for defamation. The reason that it is adherence because law shall not permit any person to recover damages for any injury which he doesn’t or ought not to possess. If the statement is substantially true but partially incorrect the defense is still available. 2. Fair comment: Making fair comments on matters of public interest is a defence to an action for defamation. For this defence to be available the essentials are: 1. It must be a comment 2. The comment must be fair. 3. The matter commented upon must be the matter of public interest. 3. Privilege: It contains of absolute privilege and qualified privilege. This means that it contains either a situation wherein no action no lies against the defendant for the defamatory statement said.