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TORTS
- Tort definition – Civil wrong, between two individuals, with unliquidated damages, specifically containing a breach of duty that is fixed by law. It is an infringement of a right in rem, and justifies a right to compensation. It is found in common law, however is uncodified. Furthermore, torts do not involve breach of contract or trust.
- Torts are broadly classified under three sections o Negligence o Intention o Strict Liability
- For a tort to be committed there are two essentials: o Act or omission of an act that is recognized by law on the defendant side o Act or omission should lead to damages or breach of legal rights of the plaintiff. LAW OF TORT V LAW OF TORTS
- Law of tort o Every wrongful act is treated as a tort o Winfield – Injury to neighbour allows him to sue in tort whatever the wrong may be and he may be liable if cannot provide legal justification ▪ Ashby v White – ubi jus ibi remedium (where there is a right there is a remedy – when a person’s rights are violated they have an enforceable right to obtain compensation before a court), torts are infinitely various and not confined. This theory is supported in courts which create new torts.
- Law of torts o A number of specific wrongs o Salmond – no law of tort, only torts. Pigeon-hole theory, where each labelled tort is a pigeon-hole and only if the case fits in one will the case be considered. o Dr. Jenks - agreement, however new torts can be created but these torts have to have substantial similarities to ones already in existence. o Heuston – Salmond never believed that torts is a closed system. o Glanville Williams - Just because law is made of pigeon-holes doesn’t mean new pigeon holes cannot be made. From a narrow point of view, the second theory will suffice however from a broad point of view the first is valid. TORTS AND OTHER WRONGS
- Tort and Crime o Less serious wrongs are private, civil wrongs while more serious are public, criminal. Private wrongs are infringements of private rights belonging to individuals while public wrongs are breaches of public duty and behaviour and are thus regarded as crimes. o Certain crimes are both tortious and criminal, such as assault, negligence, defamation and nuisance. When the wrong seriously affects one person or affects a large enough group then it is considered criminal. If a person obstructs a house it is a tort, however if he obstructs a public road it is a crime. o In torts the injured party files the suit himself as the plaintiff, and the suit is withdrawable at any time. In crime, the case would be the defendant vs the state, and this cannot be settled. o Torts are settled by compensation, crime by punishment.
- Tort and Breach of Contract
o Breach of contract is a breach of duty undertaken by the parties themselves. The agreement, violation and breach is all made by free consent. Torts however are breaches of duties imposed by law and not the parties involved. o In contracts the parties involved owe a duty of care only to each other and not to the public in large. In the case of Donoghue v Stevenson , the manufacturer owes a duty of care to each consumer. o Damages can be liquidated in breach of contract however in torts it is unliquidated.
- Tort and Breach of Trust o Breach of trust is a division of the law of property which is detachable from other forms of law. o Damages in breach of trust is liquidated.
- Tort and Quasi-Contract o If a person gains a benefit or an advantage which another person was entitled to, then the law may compel the former to compensate the latter. These are quasi-contracts as the law implies a contract between the two parties though there is no formal contract. OMISSION AND COMMISSION
- A person must do something which he was not expected to do or omit to do something he was expected to do.
- The wrongful act or wrongful omission is something that must be recognized by law. INJURIA SINE DAMNUN
- Infringement of a legal right without damage
- Thus the test is not whether the plaintiff has suffered damages but rather if any of his legal rights have been violated.
- These are two kinds of torts, those actionable without proof of damage such as trespass and those which do require proof. o Ashby v White – Plaintiff was a qualified voter, however he was wrongfully refused voting rights by the defendant. Though the candidate he wished to vote for won he still claimed damages as his legal right to vote was violated, which the court upheld. o Bhim Singh v State of J&K – the plaintiff, an MLA from J&K, was wrongfully detained from the police and was not produced before the magistrate. He was thus prevented from attending the Assembly session and lost the right to personal liberty under Art. 21, and thus could claim damages. DAMNUN SINE INJURIA:
- Damage with no interference to legal rights, and thus not actionable. o Gloucester Grammar School case – Schoolmaster sets up a rival school, forcing the first school to drop its prices causing a loss but no legal violation. o Bradford Corporation v Pickles – Defendant derived water from his own land, discolouring and diminishing the entire pool thus causing damage to the plaintiff but not directly violating any legal rights of the plaintiff. o Tomlinson v Congleton Borough Council – John Tomlinson, plaintiff, dived into an artificial lake and hit his head, leaving him tetraplegic. He brought claim against Congleton Borough Council stating that there was not adequate warning of diving and claiming loss of earnings, loss of quality of life and cost of care. The council (defendant) however had
- Sufficient relationship of proximity based upon foreseeability
- Reasons as to why there should not be a duty of care.
▪ Caparo Industries v Dickman – Fidelity plc was a target of takeover by
Caparo. Fidelity’s directors made an announcement as to the profits, on the basis of which Caparo went ahead with the takeover. Once it took over it discovered that Fidelity was in worse shape than projected by the announcement, and thus sued Dickman for negligence in preparing accounts. For this case a three-fold test was made:
- Harm must be reasonably foreseeable as a result of the defendant’s conduct
- Parties must be in a relationship of proximity
- Must be fair, reasonable and just to impose liability.
▪ Thus under these three principles the Caparo test determined that Caparo was
not held a duty of care.
▪ Sutherland Shire Council v Heyman – Plaintiff bought a house which had
bad foundations, sued the council for negligence in approving plans for the erection of the house and in failing to ensure that the land will be inspected. This case held that all public authorities could be held liable for negligence. It furthermore held that the law should develop categories of negligence incrementally and with analogy, established categories rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations’ which ought to negate, reduce or limit the scope of duty.
▪ Home Office v Dorset Yacht Co - Juvenile offenders were put under
supervision of officers. The officers left them unsupervised one night and thus these juveniles escaped, stole yachts and caused damage by crashing these yachts. The supervising officers were held liable as it was reasonably foreseeable that the juveniles would escape if left unsupervised. This case diluted the sense of proximity, however still showed a clear duty of care and had enough proximity, thus causing the officers to be held liable.
▪ Jacob Mathew v State of Punjab – Patient admitted to a hospital due to
breathing problems. Calls nurse at night saying he had problems breathing. Nurse calls a doctor who arrives 20 minutes late however the patient recovered by then. After sometime the patient again had problems breathing. No gas cylinders were nearby, and even after one was found there were no doctors around to operate it. Patient dies from lack of oxygen. Three principles of medical negligence:
- Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time
- Whether the doctor adopted the practice in the case that would be adopted by such a doctor of ordinary skill in accord with one of the responsible bodies of opinion of professional practitioners in the field and
- Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
- Breach of duty is non-observance of due care which is required in a particular situation. The standard is that of a reasonable man or an ordinarily prudent man. o Standard of care requires three points:
▪ Importance of the object to be obtained
- Latimer v AEC Ltd - Heavy rainstorm in factory, causing oily substance to spread. Caused floor to be slippery, thus the employees spread sawdust. Plaintiff slipped anyway, however the defendant acted responsibly and thus were not held liable.
▪ Magnitude of risk – Greater magnitude of risk entails greater requirement of
prudence.
- Surendra Shetty v Sanjiva Rao – Drivers in school zones should have greater responsibility to control speed of vehicle so as to stop the vehicle. In this case a schoolboy of 9 years old suffered severe injuries when a car crashed into him. The driver was held for rash and negligent driving.
- Bolton v Stone – Plaintiff stood near a cricket ground. A ball flew over and hit him. Due to the likelihood of injury of people near such a well-established cricket club on the road was so slight, as well as the likelihood of a person standing near the cricket club to be hit that the club could not be held liable.
- Mullin v Richards – Plaintiff and defendant were fencing with plastic rulers. One shattered and hit the plaintiff’s eye, causing blindness in that eye. She brought a claim, however it was rejected as the standard of behaviour of reasonably prudent 15 year olds would not include this much foresight and thus they were not held liable.
- Roberts v Ramsbottom - Ramsbottom drove into Roberts as she was emerging from her car, injuring her, her daughter, and wrecking her car. Shortly before he had rear-ended a van and knocked a boy off his bicycle, he had had a minor stroke that caused him to lose control of his actions, which was responsible for these actions. He had no reason to expect that he had had a stroke as he had never had any previous symptoms and did not realize at the time that he was unfit to drive. Ramsbottom claimed that he was acting reasonably and was not responsible for his actions as a reasonable person would not expect to be impaired in this way. The courts held that due to him having some consciousness, he was liable for his actions. In order to escape liability there must be a total loss of consciousness.
- Manfield v Weetabix - Tarleton, an employee of Weetabix, did not know that he had a condition that caused his brain to malfunction when his blood sugar was low. He caused a series of accidents after driving while hypoglycemic. He was found liable at trial which he appealed, which he won. The court found that the employee could not know that his actions were impaired and thus could not be held liable. This thus overturned the Roberts v Ramsbottom case.
▪ Amount of consideration – court discretion
should not have been in the working environment and the innocent dust, which would have been present in any event. The burden of proof laid on the plaintiff to show that the dust had a material contribution, and but for the defendant’s lack of installing a fan, the defendant would not have contracted the disease. Thus the court decided that the dust was material enough to warrant compensation. o McGhee v National Coal Board - James McGhee was employed to clean out brick kilns and developed dermatitis from the accumulation of coal dust on his skin. Because there were no shower facilities at his workplace, he would cycle home each day, increasing the risk that he would get dermatitis. Had his employer provided shower facilities, the coal dust could have been washed off before cycling, reducing the risk of contracting dermatitis. Due to the limits of scientific knowledge, it was impossible to rule out the possibility that he hadn't contracted dermatitis during the non-wrongful exposure to brick dust while working in the kiln. The House of Lords held that the risk of contracting dermatitis was substantially increased due to a lack of showering facilities, and thus the defendants were held liable. The implication of the case was significant as it meant that a claimant need not demonstrate that the defendant's actions were the "but for" cause of the injury, but instead that the defendant's actions materially increased the risk of injury, and thus damage, to the claimant. CAUSATION IN LAW
- Novus Actus Interveniens – New act intervening. The chain of causation is broken. Even if the defendant was negligent, there is no liability if there was a new, intervening act that breaks the chain of causation between the original negligent act and the damage suffered by the claimant. The snapping of chain of causation can be caused by either natural event or human action. o Human action – human action does not sever the connected sequence of acts, and thus the mere human action does not prevent the sufferer from claiming damages from the original wrongdoer. Secondly, it must be shown that to break the chain of causation, there is some action that is unwarrantable and unreasonable. Thus a reasonable act done by a person in consequence of the wrongful act of the defendant which results in further damage does not break the chain of causation. o Natural events - when negligence is followed by a natural event of such magnitude that it erases the physical effects of the original negligence, the defendant’s liability ceases at the moment in time when the supervening condition occurs. o Claimant’s own conduct – When the claimant himself acts unreasonably and negligently, causing damage to himself, the chain of causation is considered broken and not the defendant for the first negligence.
▪ McKew v Holland & Hannen & Cubitts - the defendant's negligence caused
an injury to the claimant's leg that significantly weakened it. When later attempting to descend a steep staircase without a handrail or assistance, the claimant broke the ankle in the same leg. The claimant knew that his left leg might give way suddenly. He could see that these stairs were steep and that there was no handrail. If he had given the matter a moment's thought, he would have realised that he could only safely descend if he went extremely slowly and carefully so that he could sit down if his leg gave way. Alternatively, he should have waited for assistance. But recklessly he chose to descend and, when he fell, he could not stop himself. That was taking an unreasonable risk and, therefore, his behaviour broke the chain of causation. o Third Party/sequential causes - Whether the acts of a third party break the chain of causation depends on whether the intervention was foreseeable. The general rule is that
the original defendant will be held responsible for harm caused by a third party as a direct result of his or her negligence, provided it was a highly likely consequence. o Baker v Willoughby – Baker was knocked down by the defendant’s car, leaving him with a stiff ankle of his left leg and reduced mobility and income. After the accident but before the trial, Mr Baker was shot by a robber in his injured leg and the leg had to be amputated. The defendant argued that the injuries he had caused to Mr Baker were obviated by the later accident. His argument was based on causation: the shooting was an intervening event, which was not caused by his negligent driving and the amputation of the man's leg meant that the defendant could not be held accountable for any loss, since the damage he had done previously no longer existed. The court while rejecting such arguments did undercompensate Mr. Baker. o Jobling v Associated Dairies - Associated Dairies negligence caused Jobling a back injury that subsequently limited him to light work. After this Jobling developed a spinal disease unrelated to the accident that caused him to be totally incapable of work. At the lower courts he was granted damages up to the point he had to withdraw from work which he appealed. The court held that the fact that even if there had not been an accident there would still have been losses that cannot be disregarded. Therefore, it seems like the damages will be limited to the period before the disease was discovered, or at least reduced. However, he goes on to say that in cases where there are two subsequent tortfeasors, it is unreasonable if the damage assessment to the second party does not take the previous incapacitation into effect. The total damage paid to Jobling must be the overall damage from all of the injuries, but Associated Dairies should share this burden fairly depending on the circumstances. Thus subsequent tortfeasors must have their damages assessed while taking the first injury into account. EGGSHELL SKULL
- Frailty of the injured party is not a defence. Thus the rule holds that a tort-feasor is liable for all damages caused by his tortious or negligent act, regardless of whether he knew of the defendant’s frailty or intended to cause him that extent of harm. o Smith v Leech Brain - an employee in a factory was splashed with molten metal. The metal burned him on his lip, which happened to be premalignant tissue. He died three years later from cancer triggered by the injury. The judge held that as long as the initial injury was foreseeable, the defendant was liable for all the harm. o Page v Smith – Plaintiff and defendant get into minor car accident. Plaintiff previously had mental disease which resurfaced upon the accident. Raises suit of nervous shock. Plaintiff entitled to compensation despite the illness resurfacing being unforeseeable by the defendant under eggshell skull principle. Further held compensation can be awarded under nervous shock even for unforeseeable psychiatric illnesses. REMOTENESS
- A defendant is only liable for consequences which are not too remote from his conduct. No defendant can be made liable ad infinitum for all consequences that follow from his wrongful acts.
- There are two tests to determine remoteness: o Reasonable foresight – if the consequences of the wrongful act could have been foreseen by a reasonable man then they are not too remote.
- Damage – loss or injury to a person or property
- Damages – Money provided as compensation to the injured party RIGHTS OF THE UNBORN
- When a child is in the pre-natal stage such that it could live on its own separated from the mother, then the baby could be considered a separate entity and could sue on its own for any injuries to the baby in the womb. Before such a time the baby is part of the mother and thus cannot raise any claims. If science cannot identify if the baby is born with deformities, then the law cannot make any statements. o Mckay v Essex Area Health Authority – A doctor failed to advise an abortion in a case where if the pregnancy went through, the child would almost certainly be born with a disability. The unborn child was not allowed to have any claim. Public policy precludes such a claim as there is no way of balancing the merits of no life against the benefits or disadvantages of a disabled life. o Dobson v Dobson - Cynthia Dobson was in the 27th week of her pregnancy. While she was driving in a snowstorm she lost control of her vehicle and struck an oncoming vehicle. It is alleged that the accident was caused by her negligent driving. Her unborn child Ryan Dobson was allegedly injured and was delivered prematurely by caesarean section later that same day. Ryan suffered from permanent mental and physical impairment, extending to suffering from cerebral palsy. Ryan’s grandfather and litigation guardian on behalf of Ryan raised a tort case against Cynthia, claiming that her negligent actions caused damage to Ryan. The Supreme Court ruled in favour of Cynthia, using the defence of public policy as reasoning for their judgement. o Union Carbide Corporation v Union of India - Alongside the other disastrous devastations that hit the area, it was discovered that multiple children suffered from congenital heart disease due to the pregnant mothers being exposed to toxic gases, thus causing the toxicity to affect the children as well. Thus the Supreme Court held that those who were unborn at the time of the Bhopal gas leak and were thus adversely affected, provided the defects could be traced back to the exposure to toxic gases, would be entitled to compensation under their pre-natal rights DUTY TO THE RESCUER
- When the plaintiff voluntarily takes on a risk to rescue someone from imminent danger, the defendant cannot take up the defence of volunti non fit injuria , and would thus be held liable to compensate the rescuer. o Haynes v Harwood – Defendant left a horse van in the street unattended. Children throw stones at a horse, causing it to bolt and thus posed grave danger to people on the road. A police constable attempted to stop the horses and suffered injury. Since the case was a ‘rescue case’, the defence of VNFI was not held and the defendants paid compensation to the constable, considering that the injuries were natural and probable consequences of the defendant’s negligence. o Cutler v United Dairies London Limited – Horse belonging to the defendant escaped into a field. Driver attempted to pacify it and shouted for help. Plaintiff attempted to help, injured in the process. Defence of VNFI held, plaintiff suit failed as there was no need to take any risk and thus the plaintiff was liable for the risk he took. o Brandon v Osborne Garett – Skylight in a shop collapses. Wife observes glass falling towards the husband, reasonably believing him to be in danger, instinctively pulls him away and thus strains her leg. In an action to recover damages, the wife was held to be entitled to compensation.
o Olga v Tailor – Fireman while rescuing people from a burning building suffers severe burns and permanent scalding. The defence of volunti non fit injuria not applicable, fireman entitled to compensation under duty of rescuer principle. NERVOUS SHOCK AND PSYCHIATRIC INJURY
- Mental suffering following a foreseeable physical injury is routinely compensated while awarding compensation for physical injury.
- To amount in law to "nervous shock", the psychiatric damage suffered by the claimant must extend beyond grief or emotional distress to a recognised mental illness.
- A person who intentionally and without good reason inflicts emotional distress on someone will be liable for any psychiatric and mental injuries that follow.
- The impact theory states that the claimant should be in a foreseeable geographical area of the injury which resulted in the shock. If the person is not within the near vicinity of the accident, then there can be no claim. This theory limited to the immediate vicinity.
- The courts identify the area of shock theory as the damages being recoverable as long as the claimant is within the reasonably foreseeable area of shock.
- Victims of mental suffering come under two types: o Primary – Participants in the event, in the actual area of danger of receiving foreseeable personal injury but only suffer a recognisable psychiatric illness and not any personal injury. These victims are entitled to receive compensation for mental suffering which amounts to a recognisable psychiatric illness even if the illness was not foreseeable. o Secondary – Not participants or in the actual area of danger but still suffer recognisable psychiatric illness. They are allowed compensation if the conditions of the ‘control mechanism’ are satisfied: (1) The plaintiff (victim) must have close ties of love and affection with the main (primary) victim, such close ties extend to spouse, family but do not extend to employer-employee relationship (2) Plaintiff must be present at the accident or its immediate aftermath, (3) Psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else. A plaintiff who was a rescuer and suffered psychiatric injury but was not within the range of foreseeable injury would be treated like any other secondary victim and thus must prove the three conditions of the control mechanism to be entitled to compensation. o Alcock v Chief Constable of South Yorkshire – Due to negligence of the police, football pens were overcrowded during a game. A disaster in the football stadium occurred resulting in the death of 96 people, all of which was broadcasted live. Plaintiffs raised claims against the constable:
▪ One plaintiff was elsewhere in the stadium when his two brothers were killed
in the disaster. He failed to satisfy the first condition of the control mechanism, that condition of ties of love and affection, as the courts refused to presume that such ties were present on the mere factor of them being brothers and no evidence proved that there were actually such ties, and thus received no compensation.
▪ Two plaintiffs lost their son in the disaster however failed to satisfy the second
clause, that of being at the accident or in the immediate aftermath, instead viewing it on television and were thus refused compensation.
▪ One of the plaintiffs identified his brother-in-law at the mortuary at midnight
following the disaster and thus failed to satisfy the third condition as he only
information was given negligently and was misleading. Heller & Partners argued there was no duty of care owed regarding the statements, and, in any case, liability was excluded. The court found that the relationship between the parties was sufficiently proximate as to create a duty of care. It was reasonable for them to have known that the information that they had given would likely have been relied upon for entering into a contract of some sort. That would give rise, the court said, to a special relationship, in which the defendant would have to take sufficient care in giving advice to avoid negligence liability. However, on the facts, the disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions. There were no orders for damages. OCCUPIER’S LIABILITY
- There is an implied warranty by the occupier that the premises are to be as safe as reasonable care would allow.
- Liability of an occupier varied according to the class of the person entering the premises in order of: (1) Person entering under a contract, (2) Visitor – customers and guests, friends, (3) Trespassers.
- Visitors include those with express permission to enter premises as well as an implied permission, with burden of proof lying on the entrant to prove that he was a visitor. A visitor ceases to be a visitor when he goes to a place not covered by the permission, where he is not expected to go, or done something contrary to warning or instruction. The occupier has no responsibility to ensure the visitor’s safety but only a responsibility of reasonable care, extending to safety from dangers of the premises due to its condition as well as dangers due to things done or omitted to be done. The duty of care to children is greater than that to adults. o Jolley v Suttan London Borough Council – A derelict boat was left in a grassy area where children played, occupied by the local authority. A child played on the boat when it fell, causing severe injury. The House of Lords held that the occupier was liable as a child injuring himself was reasonably foreseeable and thus the occupier had a duty of care to not allow such reasonable accidents to happen. o Wheat v E. Lacon & Co (1922) - A company owned a pub. The manager and his wife occupied the first floor of the pub, the manager and his wife were allowed to take residence. The claimant visited the premise through the rear end of the building. The rear stairs did not have a complete handrail, and thus the claimant fell and had damage to himself. The court held that there could be two or more occupiers held liable. If the control is shared then there could be shared occupiers and thus both the company and the manager were held liable.
- Occupiers Liability Act, 1957: o Section 1(3) - The Act applies to a person occupying or having control over any fixed or moveable structure, including any vessel, vehicle or aircraft. o Section 1(2) - The Act shall regulate conduct with reference to licensees and visitors. o Section 2(2) - The common duty of care is the duty of care as is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. o Section 2 (3)(a) - An occupier must be prepared for children to be less careful than adults. o Section 2(4)(b) – Independent contractors are liable for faulty work.
o Section 5(1) – The occupier owes a common duty of care to persons entering or using, or bringing or sending goods to the occupier.
- Occupiers are not allowed to inflict damage intentionally or recklessly on a trespasser, such as placing a spring gun or an electrified wire to prevent trespassers. The Occupiers Liability Act, 1984 laid down a duty to persons other than visitors, such as trespassers: (a) he is aware of danger or has reasonable grounds to believe they exist, (b) he knows or has reasonable grounds to believe that the trespasser would come into danger or is in the vicinity of danger, (c) the risk is one against which he would be expected to provide some sort of other protection. o British Railways Board v Herrington – Electrified railway line of the Railway Board ran between properties in which children played. The fence had gone out needing repairs and it was possible to cross it, which the Railway staff were aware of, even noticing children cross through it. A 6 year old boy tried crossing and got severe burns from the electrified fence suddenly coming to life. The Railway Board was held liable though the boy was a trespasser.
- Liability is not to ensure visitor’s safety but rather to take reasonable care. This extends to safety not just from the state of the premises but also known dangers due to things done or omitted to be done on them. o Ferguson v Welsh - Sedgefield District Council, in pursuance of a development plan to build sheltered accommodation, engaged the services of Mr Spence to demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In breach of this term, Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr Ferguson to assist. Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an action against the Council, Mr Spence and the Welsh brothers. The trial judge held that the Welsh Brothers were liable but that Mr Spence and the Council were not liable. Mr Ferguson appealed however the appeal was dismissed. Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. As the dangers were not known it was held that Mr Ferguson would not be compensated. o Municipal Corporation of Delhi v Subhagwanti o Caminer v Northern & London Investment Trust Ltd. – Defendants were lessees of land on which there was an old elm tree. The tree fell on the adjoining highway and damaged a car and some persons. The roots were badly rotted however there was no noticeable way to discern the rot. It was held there was no liability as no ordinary layman could reasonably infer the dangerous condition of the roots. TRESPASS TO PERSON
- Assault is an attempt to do hurt to another along with the apparent ability and intention to do so. Actual contact is not necessary.
- Battery is the intentional and direct application of physical force to another person. It is the actual striking of another person, or touching him in a rude, insolent, angry or revengeful manner.
- Throwing water at a person could be classified as assault, however if any drops of water touch the person it could be regarded as battery.
o South Indian Railway Co v Ramakrishna – Ticket collector proclaimed to the passenger that he was travelling without a ticket. Plaintiff produced the ticket then filed a suit for defamation. Suit not held as it was bona fide action by collector.
- Essentials of defamation: o Statement must be defamatory – Injures reputation of the plaintiff in the estimation of right thinking members of society which might make such members shun or avoid that person. o Said statement must refer to the plaintiff o Statement must be published – Publishing involves making the defamatory matter known to some person other than the person defamed. Communication to the plaintiff alone is not enough, there needs to be an injury to the reputation. Dictating to a typist however is considered as publication, as is a defamatory letter intended for the plaintiff which can be easily read by another.
- Those who repeat the matter are as liable as the original defamer, as every repetition is a fresh publication giving rise to a fresh cause of action. However if the defendant did not know or could not have known that what they were circulating was defamatory despite reasonable diligence, then they would not be held liable. Further an editor cannot claim indemnity for obtaining wrong information and then publishing it, because it is his prerogative to verify the information before publishing it. o Emmens v Pottle – Defendants were news-vendors, sold libellous newspapers. Held not liable for no knowledge. o Gurbachan Singh v Babu Ram – Editor published wrong information believing it to be true. Held liable.
- Defences: o Truth – Truth, regardless of intention behind publication, remains an absolute defence to defamation. The statement must be substantially true with the correct interpretation being reasonably foreseeable by right thinking members of society. o Fair comment – Following conditions are required for a fair comment: (a) Must be a comment, an expression of opinion and not assertion of fact, (b) Comment must be fair, (c) Matter commented upon must be in public interest. o Privilege – Right of free speech that outweighs the plaintiff’s right to reputation. In matters of absolute privilege there is no action for defamation even if the statement made is false or maliciously made. This is recognized in parliamentary proceedings, judicial proceedings and state communications. In qualified privilege, the statement must be made with no malice and there must be an occasion which calls for the statement to be published.
▪ V Narayana v E Subbanna – Statements made in a complaint to police were
absolutely privileged, thus filing a false complaint cannot be held as liable for defamation. Courts held not liable.
- In a suit for damages for defamation the plaint ought to allege the publication of defamatory statement, set out the actual words used and also state that they were published or spoken to some named individuals and specify time and place they were published. Only the person who is defamed can raise a suit. TRESPASS TO LAND
- Trespass to land means interference with possession of land without lawful justification. Interference with possession is direct and through a tangible object. Non-direct interference is nuisance. Throwing stones is trespass, allowing them to fall from a ruinous wall is nuisance.
- Going beyond the purpose for which a person has entered certain premises or crossing boundaries at which the person has authority to go amounts to trespass. A person does not become a trespasser by merely going beyond the area of invitation, he must go to areas expressly forbidden.
- Trespass is against possession rather than ownership. The possessor can therefore bring a suit against the owner for trespass, and can succeed on his own title’s strength rather than the weakness of the title of the other party. o Graham v Peat – Plaintiff holding land under lease that expired was entitled to bring an action for trespass against the defendant who entered that land without legal justification.
- Trespass extends to above and below the ground as well, up to reasonable limits.
- If a person enters a land under legal justification and then abuses the authority granted to him to enter the area by committing a wrongful act there, he will be termed a trespasser ab initio to the property. o Six Carpenter case – Carpenters entered an inn and ordered wine and bread, refusing to pay after eating. They did no act of misfeasance however as mere non-payment is non-feasance and thus they were not held as trespassers. o Elias v Pasmore – Police officers entered plaintiff’s premises to make a lawful arrest, however they also removed documents without any legal authority, an act of misfeasance. Their presence was not wholly unjustified because the arrest, the lawful venture, had yet to be accomplished. Thus they were held as trespassers with regards to the documents but not ab initio.
- If trespass occurs then the possessor has right to use reasonable force to get the trespasser vacated, however they cannot sue for trespass. Any loss or damages suffered during the trespass would be compensated however.
- Defences: o Right of way obstructed by plaintiff and trespass was necessary to avoid it o License to enter, such as entry to a shop or a public house, however the defendant must prove that express or reasonably implied permission was granted for such entrance to premises. o Authority of law, such as that of police officers. NUISANCE
- Unlawful interference with a person’s use or enjoyment of the land or some right over or in connection with it. Nuisance is consequential interference with land.
- There are two kinds of nuisance; public and private.
- Public or common nuisance – Crime. Public nuisance comprises of acts that either affect the public at large or some considerable portion of it, thus interfering with the rights which members of the community might otherwise enjoy. Obstructing a public road by digging a trench is public nuisance. For a private right of action a person must: (a) Show a particular injury to himself greater than that which is suffered by the rest of the public, (b) Such injury must be direct and not a mere consequential injury, (c) The injury must be of a substantial nature. o Dr Ram Raj Singh v Babulal – Brick grinding machine built adjoining the premises of the plaintiff, a medical practitioner. Brick machine generated dust which entered the consulting chamber of the plaintiff, causing inconvenience to his patients and himself. It further coated the clothes red with dust. It was held that special damages were to be
flow out. The defendants were held liable under the principle of strict liability. Thus the Rule of Rylands v Fletcher was created with its two elements: (a) non-natural use of land, (b) escape from his land something which causes damage. o Cambridge Water Co. Ltd. v Eastern Counties Leather Plc – Plaintiff was a company licensed to supply water in the Cambridge area. Water was taken by borehole extraction. Defendant was another company engaged in manufacture of fine leather, near to the plaintiff. Defendant used chemicals which seeped into the ground beneath the defendant’s works and contaminated the water. The defendant was not held liable as the consequences of his actions were not reasonably foreseeable. Knowledge of mischief is a prerequisite of liability.
- Defences o Act of third party/stranger – If the act was caused by a third party over which the defendant had no control over, then the defendant would not be held liable.
▪ Perry v Kendricks Transport – The defendant kept an old coach in need of
repairs on his land adjoining a wasteland. Some boys saw it and threw lit matchsticks into the petrol tank, causing an explosion from which the claimant was badly injured. The courts held that this was the deliberate act of a third party and thus the defendant would not be liable.
▪ Ribee v Norrie - Miss Ribee, the claimant, a 70 year old woman lived in a
terraced house. The neighbouring property was owned by the defendant and had been converted into a hostel. One night a fire broke out in the hostel which spread to Miss Ribee’s home. Miss Ribee was awoken by her dog and managed to escape but suffered personal injury in the form of smoke inhalation and panic attacks. She also incurred damage to her property. The fire was started by a negligently discarded cigarette by one of the occupants of the hostel. The defendant was held liable as the person who started the fire was not a complete stranger and thus the defendant had the power to prevent such actions, such as smoking, from occurring. o Plaintiff’s own fault – If the plaintiff suffers damages for his own intrusion into the defendant’s property then he has no right to complain for the damage caused. o Act of God – If the escape was caused by unforeseen and supernatural forces without any human intervention then the defence of act of God can be pleaded.
▪ Nichols v Marsland – The defendant created artificial lakes on his land by
damming up a natural stream. That year there was extraordinary rainfall and thus the embankments constructed for the artificial lakes gave way and the water rushed out. It was held that the defendants were not liable as it was an act of God. o Consent of the plaintiff – VNFI
▪ Carstair v Taylor – Plaintiff hired ground floor of a building from the
defendant. Upper floor was occupied by the defendant himself. Water stored on the upper floor leaked without any negligence on the part of the defendant and injured the plaintiff’s goods on the ground floor. As the water was stored for the use of both the plaintiff and defendant it was held that the defendant was not to be held liable. o Statutory Authority – Act done under the authority of a statute is a defence. Statutory authority however cannot be used as a defence to negligence.
▪ Green v Chelsea Waterworks Co – Defendant company had a statutory duty
to maintain continuous supply of water. A main burst without any negligence on the company’s part and as a consequence the plaintiff’s premises was
flooded. It was held that the company was not liable as it was performing a statutory duty. ABSOLUTE LIABILITY
- When an enterprise is engaged in a hazardous or inherently dangerous activity for its profit and harm results to anyone on account of an accident in the operation of such activities, then such enterprise will be held absolutely liable to compensate all those who were affected by the accident and such liability is not subject to any exemptions or defences. The enterprise alone must have the resources to discover and guard against hazards or dangers and to provide warning against potential hazards. o MC Mehta v Union of India – Claims arose from the leakage of oleum gas from one of the units of a company. As a consequence of this leakage, it was alleged that people were affected, leading to death. This occurred in the wake of the Bhopal tragedy. The SC evolved the rule of absolute liability and thus held the company completely liable. o Klaus Mittelbachert v East India Hotels Ltd. – A German pilot when staying at the Oberoi in Delhi was badly injured when he dived into a hotel swimming pool due to defective design and insufficient water. It was held that a five-star hotel owes a high duty of care to its guests and thus was held to pay exemplary damages. MASS TORTS
- Bhopal gas leak – Deaths of over 3000 people and complications and injuries in a large number of others due to the leakage of MIC and other toxic gases from the plant set up by Union Carbide Corporation. Due to the vast number of people wishing to raise cases against UCC, the Government of India filed a suit on behalf of all the claimants. The UCC was held under the principle of absolute liability and was made to pay exemplary compensations. VICARIOUS LIABILITY
- Liability of one person for acts done by another person may arise when there is a special kind of relationship between the people.
- Salmond’s test for vicarious liability: o a wrongful act authorised by the master, or o a wrongful and unauthorised mode of doing some act authorised by the master. o It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes-although improper modes-of doing them.
- Master and Servant – Qui facit per alium facit per se & Respondeat superior hold that the master is liable as well as the servant, putting the master in the same position as if he did it. Their liability is joint and several as they are considered to be joint tort-feasors. This further arises from the deep pocket theory, which states that masters are more likely to be able to meet the claims against them. For vicarious liability to hold it must first be established that the employee was a servant and not an independent contractor, determined through the test of control. The four conditions in the test of determining servanthood are: (a) Master’s power of selection of servant, (b) payment of wages, (c) Master’s right to control the method of doing
