Law Of Torts Notes PDF

Toc Authors Details (Page 1 of 1)  Toc (Page 1 of 1)  Contents Chapter 1 La...

Toc Authors Details (Page 1 of 1)  Toc (Page 1 of 1)  Contents Chapter 1 Law of Torts 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 5 cases. (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 9 and not a tort' if your answer is in affirmative then explain it with the help of relevant cases? Distinction between a Tort and a Contract 10 (Page 1 of 17)  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 13 of these observations, explain the maxim 'Damnum sine injuria'. 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 13 damages. 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 (Page 2 of 17)  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 22 observation given in the case South Indian Industries Ltd., Madras v. Alamelu Ammal. 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. 28 Municipal Commissioner of Purulia. 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 31 Court in the case. The State of Saurashtra v. Mohammad Abdullah. Chapter 6 Remoteness of Damage 1. Introduction 32 (Page 3 of 17)  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 33 remoteness of damage? 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 35 Lord Pearce in the case Hughes v. Lord Advocate. 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 36 observation given by the court in the case Tremain v. Pike define the term element of foreseeability. 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 38 for protection of his rights? Explain it. * 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? 39 Discuss it with the help of relevant cases. * 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 41 the help of relevant cases. * 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 (Page 4 of 17)  * 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 43 Kishore v. Goverdhandas. * Lunatic 43 Q. Can insanity be considered as a defence in tort? Do you agree with the statement that if the nature and 44 quality of act are known to the defendant then no defence is available for the defendant? * 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 (Page 5 of 17)  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 (Page 6 of 17)  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 60 Interference with Goods Act, 1977 which allows for conversion remedies. 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. 65 Upto what extent you agree with this statement-Explain. 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 (Page 7 of 17)  Negligence 1. Introduction 67 Q. Define negligence and discuss two theories-subjective and objective theories with the help of relevant 67 cases. 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. 68 Stevenson. 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 70 negligence 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 71 negligence.' Describe it in the light of judgment given in the case M.C.D. v. Subhagwanti. 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 (Page 8 of 17)  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 76 'Dulieu v. White'? Q. The defendant owed a duty of care to the boy and not to the mother. What were the observation of the 78 Judges (Singleton, L.J.; MC Nair, J.; and Denning, L.J.) in the case Kings v. Philips? 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 80 negligence? Q. Why it was thought that the vardict given in the case of Butterfield v.Forrester was not in favour of 80 victim? 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 83 cases? 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 (Page 9 of 17)  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 86 trespasser? 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, 86 1957. Discuss it with the help of relevant cases. 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 89 wrong committed by others? 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 92 commits a tort? Q. Many factors have bearing on the result. Who is paymaster, who can dismiss, how long the alternative 92 service lasts, what machinery is employed, have all to be kept in mind? Q. If the original employer is able to establish that when the servant was lent, the effective control over him 93 was also transferred to the hirer, the original owner can avoid his liability? (Page 10 of 17)  * 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 99 Peacock, C.J. today when the circumstances are different from that of 118 years back? 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 101 State while exercising its sovereign powers. 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 102 sovereign powers. 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 (Page 11 of 17)  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 106 relevant cases. 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 108 defamatory against his wife. When they are estranged? 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 112 in protection of common interest. Q. "The intention was not to serve the public interest but to expose the plaintiff" Do you agree with the 113 judge's observation in the case R.K. Karanjia v. Krishna Raj M.D. Thackersey? 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 (Page 12 of 17)  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 118 Corporation? 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 121 Blackburn in the case Rylands v. Fletcher? Explain it. 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 122 Blackburn in the case of Rylands v. Fletcher? 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 (Page 13 of 17)  Q. Describe absolute liability in the light of observation made by the Court in the case M.C. Mehta v. Union 126 of India (Shriram case). How does it differ from the rule as laid down in the case Rylands v. Fletcher? 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, 135 1925. 3. Loss to dependants 136 Q. Define loss of dependants with the help of relevant cases. 136 4. Deductions 138 (Page 14 of 17)  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 (Page 15 of 17)  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 151 related with it. 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 155 other Members? * 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 (Page 16 of 17)  * 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 27 168 MODEL QUESTIONS WITH ANSWERS Table of Cases 174 © Universal law Publishing Co. (Page 17 of 17)  CHAPTER 1 LAW OF TORTS TORT: MEANING AND DEFINITION What is the meaning of tort? In common parlance the tort is an injury or wrong independent of implied contract, as by assault, libel, malicious prosecution, negligence, slander or trespass or seduction. The term 'tort' is French in origin which is synonym to 'wrong' in English version. This word has originated from the Latin word 'tortus' which means to twist and implies conduct which is tortious or twisted. The Roman word 'delict' and Sanskrit word 'Jimha' depict same the meaning. The concept of tort appears when a breach of some duty is caused which is independent of implied contract giving rise to a civil cause of action and for which compensation can be claimed and a damage is recoverable. 1. Definition of Tort Many authors have defined the term 'tort' but so far, its definition is still in a growing stage and it would be difficult to accept any single definition which could define tort in wholesome manner. There are shortcomings in each of the definitions but we will try here to find those missing links and bridging the gaps with our own suggestions. A workable definition of tort may be as:-A civil wrong which is independent of implied contract for which the appropriate remedy is an action for unliquidated damages. Salmond and Heuston A tort 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 contract or the breach of a trust or other merely equitable obligation.'1 Clerk and Lindsell 'A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action'.2 Sir Fredrick Pollock 'The law of torts in civil wrongs is a collective name for the rules governing many species of liability which, although their subject-matter is wide and varied, have certain broad features in common, are enforced by the same kind of legal process and are subject to similar exceptions'.3 ______________ 1. Law of Torts (1992), 20th Edn., pp. 14, 15. 2. Clerk & Lindsell, Torts, 8th Edn., p. 1. 3. Pollock , Law of Torts, 11th Edn., p. 15 Winfield and Jolowicz Define Tort in the words of Winfield and Jolowicz. 'Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages'.1 It would not be out of place to mention here that none of the above definition gives a wholesome information on torts which can be accepted in its totality. However, the definition given by Winfield has more substance compared to those of other authors and if we examine here some of its shortcomings then certainly we can try for a definition near to perfection by adding some more teeth to it. (Page 1 of 6)  Important points of Winfield definition are: (a) duty primarily fixed by the law, (b) duty is towards persons generally; and (c) action for unliquidated damages. (a) In tortious liability, the duty must be fixed by the law from the beginning and not by undergoing an agreement between the parties. So, parties can neither create nor negotiate the tortious liability by contract. Tort arises from the duty which has been fixed by the law and has been infringed by the party. From the above definition it is clear that liability arises from the breach of duty by a person but it has been seen that even though a person not committed a breach of duty himself, is held liable. Vicarious liability cases fall under the category where a master is held liable for his servant's wrong. In our country, it is the legal duty of every person who drives a vehicle to drive it carefully obeying traffic rules and guidelines. For example A appoints B as his car driver and one day A asks B to fetch his relative from railway station to A's residence. In course of performing his duty B travels to station at excessive speed and hits a pedestrian causing him grievous injury. Here B has committed a breach of duty primarily fixed by the law, but his master A will also be held liable in civil action under the rule of vicarious liability. This definition doesn't give space for such kind of cases to come within its ambit. (b) The duty in tort is always general and it is an important constituent of tort. In maximum cases, it is workable but in some cases, it becomes difficult to say who exactly are 'persons generally' hence it can be said that these words are ambiguous. In any case, this ambiguity of tortious liability serves to keep it distinct from the contractual liability, quasi-contractual liability and the liability arising from bailment where the duty is towards specific persons. (c) Liquidated and unliquidated damages - where the plaintiff in an action sues for a pre-determined and inelastic sum of money - it is a claim for liquidated damages. But if he sues for a sum which court, in its discretion, is at liberty to award, then he is said to have a claim for unliquidated damages even though he has mentioned a particular (fixed) sum of money in his pleadings. The action for unliquidated damages is a litmus test of tortious liability since the award of damages is under the discretion of courts. ______________ 1. W infield and Jolowicz on Tort by W.V.H. Rogers, 12th Edn., 1984, p. 3. In case of Laxmi Devi v. State of Madhya Pradesh, MANU/MP/0063/2010 : AIR 2011 MP 47 the Court going through the veracity of tortious liability observed that negligence on part of treating Doctor or operating surggeon has to be necessarily established as "negligence" or "gross negligence". Because it is expected from professional medical doctors and surgeon that they would perform their duty well and upto best of their ability. In absence of culpable negligence, no doctor or surgeon could be penalised or declared guilty of committing negligence. Apparently if the plaintiff has suffered an injury for which, apart from the contract, he could have recovered damages, it is a tort, although it may also be a breach of contract and not less, if the tort has been suffered in the execution or purported execution of contract, Turner v. Stallibrass, (1898) 1 QB 56. Hence the distinction between "tort" and "contract" is not a logical one and it is sometimes different to say whether a particular thing is a wrong or a breach of contract. In the case, State of Rajasthan v. Vidyawati, MANU/SC/0025/1962 : AIR 1962 SC 933: (1962) Supp 2 SCR 989, the plaintiff had claimed a damages for Rs. 25,000, but the court awarded only Rs. 15,000. Considering such element of tort, it can easily be distinguished from contract and bailment where the amount of loss is always pre-determined and inelastic. This definition also lacks other remedies viz. (a) self-help (b) injunction; and (c) actions for specific restitution of property. * Self help can be availed by a person without going into a court of law. For example, if A finds a drunken (Page 2 of 6)  stranger 'B' in his room then A is entitled to get rid of him without force but if he does not succeed then he can use as much force which is required to evict the stranger from his room. So, in Winfield's definition, an action for unliquidated damages is not necessarily the primary remedy for a tort. * Injunction is the order or judgment given by the court to restrain the commission or continuance of some wrongful act or omission. For example, in case of nuisance, the first remedy that would suggest itself is injunction and an action for damages would then follow. Thus, here injunction is the primary remedy and not the unliquidated damages which comes later. * Actions for specific restitution of property are the alternative remedies in law of torts. When the plaintiff has been dispossessed of his land, chattels or goods by wrong means then only such remedies are granted. It can be said here that an action for damages is not essentially the primary remedy. By incorporating nature, scope and characteristic of torts in the Winfield's definition it can be read as: "Tortious liability arises from the breach of a duty primarily fixed by law which results in an infringement of private legal right of another and for which, civil action for unliquidated damages, injunction, specific restitution of property or even self-help, as the case may be, can be maintained."1 2. Essentials of Tort What are the essentials of tort? When the interest is protected, it gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute and its mere violation leads to the presumption of legal damage. To constitute a tort or civil injury following ingredients are necessary: __________________ 1. S.P. Singh, Law of Tort, 4th Edn., p. 6. (a) A wrongful act or omission on the part of a person; (b) That wrongful act or omission must result in legal damage to another; and (c) The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. (a) Wrongful act or omission What is wrongful act or omission? A wrongful act or omission is said to have been committed by a person who has not performed his duty like a reasonable and prudent person or has broken it intentionally. In the case, Rogers v. Rajendra Dutt, (1860) 8 MIA 103 (136): 13 Moore PC 209, it was observed that 'the act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interest is not enough'. Legal right in words of Austin is a 'faculty' which resides in a determinate party or parties by virtue of a given law, and which avails against a party other than the party or parties in whom it resides. For example, 'A' erects a wall on his land which obstructs the light to B's house. Although it is undoubtedly a lawful act to erect a building on one's own land but since the neighbour has enjoyed uninterrupted light for years, he has acquired the legal right to have this enjoyment, so erection of construction by A on his own land is an invasion of the right of B hence, not only damage but it is also unlawful and injurious. A wrongful act may be a positive act or an omission which can be committed by a person either negligently* or intentionally** or even by committing a breach of strict duty.*** (Page 3 of 6)  For instance, if a person drives his car at an excessive speed and with his rash and negligent driving injures any person on the road or keeps a dog on his land which escapes and bites a person in the neighbourhood then such act of the said person is a positive wrongful act or omission and he can be held liable for this. It would be pertinent here to mention that a breach of merely moral or religious duty can't be considered under this head but it must be a duty primarily fixed by the law. Example: Moral Duty A, a lady who falls ill and requests her neighbour B to look after her since she is all alone. B takes care of 'A' and extends all types of help like giving food and medicines to her and making her comfortable with his presence at the time of need. A recovered after sometime. Once B fell ill, he requested A to help him during his illness but A never acceded to B's request and B due to lack of proper care and help became disabled. Here, it was A's moral duty to look after B _______________ * Negligence m eans when a person does not act with care and caution and said to be careless while perform ing his duty without applying prudence. ** Intention signifies full advertence in the m ind of the defendant to his conduct which is in question and to its consequences, together with a desire, for those consequences. *** Breach of strict duty speak s about liability of person even though he is not at fault. In Rylands v. Fletcher it was laid down "if a person brings or accum ulates on his land anything which, if it escapes, m ay cause dam age to his neighbours, he does so at his peril, if it escapes and cause dam age, he is responsible, however careful he m ay have been, and whatever precautions he m ay have tak en to prevent dam age".-(1868 LR 3 HL 330). during his illness and this duty cannot be held as legal duty. Since, this moral duty has not been fixed by law itself, B cannot take any legal action against the lady 'A'. Example: Religious Duty In the case Dhadphale v. Gurav, (1881) 6 Bom 122, Dhadphale was a servant in the temple and had a right to get the food offered to the idol and Gurav was under obligation to offer the food to idol but he failed to do so and the servant Dhadphale brought a suit against Gurav for damages. It was held by the Court that Gurav was not under legal obligation to give the food to the servant of the temple, failure to offer the food to idol was a breach of religious duty and not the legal duty hence, the plaintiff was not entitled for damages. Damage to wall by water In the case Anand Singh v. Ramachandra, AIR 1953 MP 28, the defendant built two pucca walls on two sides of his house on his land resulting in damage to walls situated between the defendant's and plaintiff's houses. The flow of water in the lane damaged the plaintiff's walls. The plaintiff had not acquired any right of easement. The Court was of the view that the defendant by building the wall on his land had not in any way violated the plaintiff's right therefore, no right of action was accrued to the plaintiff. (b) Legal Damage Describe legal damage. Discuss absolute and qualified damage with the help of relevant cases. Legal damage is second important ingredient in constituting a tort. Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act done by another person. The sum of money which is awarded by the Court to compensate 'damage' is called "damages". On the basis of presumption of damage rights are of two types: (i) absolute and (ii) qualified. In case of violation of absolute right, the law conclusively presumes damage although the person wronged may have (Page 4 of 6)  suffered no pecuniary loss whatsoever. The damage so presumed is legal damage. In qualified rights, there is no presumption of legal damage and the violation of such right is actionable only on proof of actual or special damage. In this case injury or wrong is not complete unless and until actual damage has been caused by violating the rights. In Ashby v. White, (1703) 2 Lord Rayam 938, the plaintiff's legal right to vote in the parliamentary election was maliciously violated by the defendant and the defendant was held liable although the plaintiff not incurred any pecuniary loss. Lord Hott, C.J.; observed-"Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right". In another case, Marzetti v. Williams, (1830) 1 B&AD 415, the banker refused to honour the cheque of the customer although the banker had sufficient funds in his hand. Here the customer did not sustain any actual loss or damage, the banker was held liable. In the words of Ihering - 'Rights are legally protected interests'. Right may be divided into two types: Private and Public. Private rights are those rights which vest in a person by virtue of law. Right to reputation, right to bodily safety and freedom, right to property etc. fall under this category. So, if a person has legal (private) right others have a duty towards him not to violate his rights. If his legal right is infringed without lawful excuse, he has a right of action against the person who infringes or violates it. Public rights are those rights which belong to everyone as common people or it belongs in common to the members of the State generally. In case of violation of public rights, State takes action against the offender. For example, public peace, it is a right of everyone and if someone breaks it then he would be held liable and will be punished under law. (c) Legal Remedy In tort, the wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Legal remedy is the third essential for an action in tort. A tort is a civil injury, but all civil injuries are not torts. The essential remedy for a tort is an action for damages but there are other remedies also for example injunction may be obtained in addition to damages in certain cases of wrongs or an action by the plaintiff himself without going to the court i.e. self-help. Mathematically tort can be summarised as follows: Wrongful act Legal damage + Legal remedy = Tort + | | | (a breach of (infringement of private (there must be at least 1 out of 4 remedies legal duty) legal right of another recognised by law i.e. damages, injunction, person) specific restitution of property and self help.) 3. Ubi Jus Ibi Remedium The law of torts has developed from the maxim "ubi jus ibi remedium" i.e. there is no wrong without a remedy, Jus, means 'the legal authority to do or to demand something' and 'remedium' signifies the right of action or the means given by law for the recovery or assertion of a right. We can also look upon this maxim which says-'Where there is a right, there is a remedy'. In the case, Ashby v. White, Holt, C.J., laid down that 'if the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise of enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal'. 4. Foundation of Tortious Liability Explain the two competing theories of tortious liability given by Winfield? Jurists are not having same opinion as to what constitutes the foundation of tortious liability. Winfield has given two competing theories: (Page 5 of 6)  (i) All injuries done to another person are torts, unless there is some justification recognised by law. (ii) There are a definite number of torts outside which liability in tort does not arise. The first theory has got support from Sir Fredrick Pollock as well as from eminent judges. Winfield says that - if I injure my neighbour he can sue me in tort whether the wrong happens to have a particular name viz. assault, battery, deceit, slander or even in absence of such names and I shall be liable if I fail to prove lawful justification. On this view, the law of tort/torts consist not merely of all those torts which have acquired specified names but also includes the wider principle that all unjustifiable harms are tortious. In the case, Chapman v. Picker S. Gill, (1762) 2 Wills 145 (146), Pratt, C.J. held that 'Torts are infinitely various, not limited or confined. Bowen, L.J. in the case Skinner & Co. v. Skew & Co., (1893) 1 Ch 413 (422), observed that "at common law there was a cause of action whenever one person did damage to another wilfully and intentionally without just cause or excuse." The second theory is also known as pigeon-hole theory. According to this theory the law of torts consists of a net-set of pigeon-holes, each containing a specific tort. For example, assault, battery, deceit, slander or any other tort. If the wrong committed by defendant does not fit in any of these pigeon-holes, then he has committed no tort. Sir John Salmond, an ardent supporter of this theory says, "Just as the criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specified injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability, and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse." 5. Conclusion The first theory has got reinforcement by the court by repeatedly extending the domain of the law of tort by creating new torts i.e. torts to which specified names have been given. For example, tort of malicious prosecution, deceit, absolute or strict liability etc. So, it is evident from such instances that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon-holes is not tenable. The first theory has got support from Lord Mansfield in Gardiner v. Creasdale, (1760) 2 Burr 905, in the year 1760 and in 1762, Pratt C.J. in the case Chapman v. Pickers, gave his favour to this theory. It also got positive remark by Bowen, L.J. and Holmes J., in the cases Skinner & Co. v. Skew & Co. and Aikens v. Wisconsin, 191 (195) US 194, respectively. There is still some controversy regarding second theory and different authors have varied views. Dr. Jenks finds that new torts can be created and this is perfectly consistent with this theory because new torts cannot come into being unless the courts regard them as substantially similar to torts which they have already recognised.1 Both the theories have their own merits and shortcomings and it depends upon the viewers who looks upon the theories from the angle he chooses. ____________ 1. Journal of com parative legislation, Vol. CIV, (1932), p. 210. ----- © Universal law Publishing Co. (Page 6 of 6)  CHAPTER 2 TORT COMPARED WITH OTHER LEGAL LIABILITIES To understand the law of torts it's essential to differentiate tort with other kinds of legal liabilities. Other legal liabilities viz. crime, breach of contract, breach of trust and bailment have same similarities with that of tort but even then, there are some points on which tort stands apart from these legal liabilities. In this chapter, we will try to find out the true position of tort at legal forum. 1. Tort and Crime Q. Distinguish between tort and crime. Since the time immemorial, it was a rule of primitive communities that the injured were compensated through pecuniary reparation. Private compensation was also allowed in crimes like homicide and serious bodily injury. Henry Maine, observed that the penal law of primitive communities was not the law of crimes but the law of torts.1 In the Anglo-saxon law, mostly pecuniary punishments were in vogue for different kinds of injuries viz. WER - price for causing death; BOT for personal injuries; WITE or fine - it was payable to the King. During the reign of rulers like Henry II, the crime was separated and the concept of Tort came into being and it was separated from crime. Holdsworth2.-Only certain lines of distinction are to be found in the nature of remedy given, and the nature of the procedure to enforce the remedy. If the remedy given is compensation, damages, or a penalty enforced by a civil action, the wrong so redressed is a civil wrong. If the remedy given is punishment of the accused which is enforced by a prosecution at the suit of the Crown, the wrong so redressed is a crime... Blackstone3.-The distinction of public wrongs from private, of crime and misdemeanours from civil injuries, seems practically to consist in this: That private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanours, are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity. ______________ 1. Maine, Ancient Law, p. 379. 2. Sir W illiam Holdsworth, History of English Law, p. 7. 3. Black stone Com m entary, p. 5. Distinction between a Tort and a Crime Tort Crime 1. A tort is an infringement of 1. A crime is an invasion of public private rights belonging to an rights or duties affecting the whole individual. society/community. 2. In tort the civil action is brought 2. In crime, the wrongdoer is by the injured party himself. The prosecuted/punished by the State wrongdoer has to pay damages and if he is proved guilty and fined to the injured party. then the fine (money) will go to Government treasury. 3. In tort, the intention of wrongdoer 3. In crime, the intention is one of the is of secondary importance. main factors. (Page 1 of 5)  4. Tort is considered as a private 4. Crime is regarded as a public wrong. wrong. Some more facts: * A liability in tort may co-exist with criminal liability. * Most of the crimes are also torts e.g. assault, libel, theft etc. * Sometimes an injury may be regarded as a crime but not a tort e.g. public nuisance by obstructing traffic on a public road. 2. Tort and Contract i.e. Breach of Contract 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? With the growth of civilization, necessities of people grew manifold and thus trade and commerce started growing day- by-day. When the trade increased, litigation could not lag behind, since the interests of the people clashed and it started taking ugly shape, then the concept of contract came into being i.e., laying down the terms and conditions between the parties on which both are agreed. It was done to avoid the litigation arising out of differences of opinions later on. Professor Winfield said about the distinction between contract and tort as-"At the present day, tort and contract are distinguished from one another in that the duties in the former are primarily fixed by the law, while in the latter they are fixed by persons themselves. Moreover in tort the duty is towards persons generally, in contract it is towards specific persons or a specific person".1 Differences between Tort and Contract as observed by Judges in various cases: Addis v. Gramophone Co. Ltd., 1909 AC 488.- "................by entering into a contract, the parties to it