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BBA LLB 2nd Sem Paper Code: 104
Subject: Law of Torts and Consumer Protection
Unit-I; Introduction and Principles of Liability in Tort
a. Definition of Tort
b. Development of Law of Torts
c. Distinction between Law of Tort, contract, Quasi-contract and crime
d.Constituents of Tort: Injuria sine damnum, Damnum sine injuria
e. Justification in Tort, Volenti non-fit Injuria, Necessity, Plaintiff’s default, Act of God, Inevitable accidents, Private defense
Unit-II: Specific Torts-I
a. Negligence
b. Nervous Shock
c. Nuisance
d. False Imprisonment and Malicious Prosecution
e. Judicial and Quasi: Judicial Acts
f. Parental and Quasi-Parental authority
Unit-III: Specific Torts-II
a. Vicarious Liability
b. Doctrine of Sovereign Immunity
c. Strict Liability and Absolute Liability
d. Defamations
Unit-IV: The Consumer Protection Act, 1986
a. Definitions of Consumer, Goods and Service
b. Rights and Duties of Consumer
c. Authorities for Consumer Protection
d. Remedies
UNIT-1 : INTRODUCTION – Definition, Nature and Scope
INTRODUCTION:
The Tort is of French origin. The root is ‘Tortum’ in Latin which means ‘twist’. It implies a conduct which is ‘tortious’, or, twisted.. The equivalent word in English is “Wrong”. In Roman it is “delict” and in Sanskrit it is “Jimha” which means ‘crooked’.
Development of tort; How did the French word ‘Tort’ comes to India?.
a) It came to India through England. In 1065 England was conquered by Normans who were the French speaking people of Normandy, a region of France. After Norman Conquest, French became the spoken language in the Courts in England, and thus many technical terms in English law owe their origin to French, and ‘Tort’ is one of them.
b) In British India, the first courts were established by the British in the Presidency town’s ofMadras, Bombay and Calcutta as Mayor’s courts. The Charter that established these courts required them to adopt the English common law of torts in force at that time to their Indian jurisdiction. Thus, ‘tort’ was introduced into the Indian legal system.
c) As for the other courts in India, which were established by local acts, there was no such express provision. However, these local acts contained a section that required them to act according to “justice, equity and good conscience” in cases where there was no specific law or usage. The expression “justice, equity and good conscience” has been interpreted by courts to mean English common law insofar as they are applicable to the situation, facts and circumstances of the case before the courts.
Meaning of Tort:
At a general level, tort is concerned with allocation of responsibility for losses, which are bound to occur in society. Tort is a branch of law governing actions for damages for injuries to private legal rights of a person, say, right to property, right to personal security, right to reputation, etc.,
DEFINITION OF TORT:
- SALMOND’s Definition: 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
- WINFIELD’s Definition: ‘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.
- FRASER’s Definition: Tort is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.
- Other Remedies: Besides un-liquidated damages, which are usually in the form of monetary compensation, there are also other remedies available in a case of tortious liability. These are: a) Injunction, b) Self –help, and c) Restitution of property.
- Criticism (shortcomings) of Winfield’s definition: a) In framing this definition, Winfield is not seeking to indicate what conduct is and what is not sufficient to involve a person in tortuous liability, to distinguish from certain other branches of law
b) The phrase 'duty towards persons generally' is vague and not adequate to include duties arising from special relationships like doctor and patient etc., and to exclude duties arising between guardian and ward or trustee and beneficiary etc. which fall outside the ambit of law of tort.
c) The phrase 'liability arises from the breach of duty', may be true at an earlier stage of development of law of tort, but it is not applicable or appropriate to an important category of liability at the present day, for example, vicarious liability of a master for his servant's
d) ‘Unliquidated damages’ is not the only remedy. There are other remedies such as self help, injunction and specific restitution of property also available.
ANALYSIS OF SALMOND’S DEFINITION OF TORT
- Tort is a civil wrong. A ‘Wrong’ can be civil or criminal. Tort belongs to the category of civil wrongs. In the case of a civil wrong, the injured party institutes civil proceedings against the wrongdoer and the remedy is damages. The injured party is compensated by the defendant for the injury caused to him by another party. Whereas, in the case of a criminal wrong, the State brings criminal proceedings against the accused and the remedy is not compensation. Punishment is provided to the wrongdoer. In a case where the act results in both civil as well as criminal wrong then both the civil and criminal remedies would concurrently be available
2 Tort is other than Breach of Contract or Breach of Trust: In order to determine whether the wrong is tort or not, the following steps are to be followed,
a) Whether the wrong is civil or criminal.
b) If it is civil wrong, it has to be further seen that whether it belongs to another recognized category of the civil wrongs, such as breach of contract or breach of trust.
c) It is only when the wrong does not belong to any other category of the wrong that is, breach of contract or trust, it is tort and if the wrong is breach of contract or trust, it is not a tort. However, if the act involves two or more civil wrongs, one of which may be a tort, in such a case injured party can either claim damages under law of torts or under other breach of civil wrong for example, breach of contract, but cannot claim damages twice.
3 Tort is redressible by action for unliquidated damages: Damages is the most important remedy for a tort. After the commission of the wrong, it is not possible to undo the harm which has already been
caused but it is the monetary compensation which can be awarded to the injured party. For example, if there is attack on the reputation of the person, there is nothing that can be done restore his lost reputation, but monetary compensation equivalent to harm can be paid to the injured. Unliquidated damages means when the compensation has not been determined previously or agreed by the parties but it is left to the direction of the court. These are the unliquidated damages which distinguish tort from breach of contract or breach of trust in which damages may be liquidated that is, previously determined or agreed to by the parties.
- Criticism of Salmon’s definition: The definition given by Salmond fails to underline the essential characteristics of tortuous acts. According to this definition tort is a wrong but it does not explain what is wrong and what kinds of wrong explaining jural features of tort. Moreover
the expression "civil wrong" itself requires explanation. Besides, Salmon’s definition also suffers from all the shortcomings of Winfield’s definition. While this definition is more informative, this is still far from perfect.
CONSTITUENTS OF TORT
Tort versus Crime
Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect the victim but also to the society as a whole to a Great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with torts.
The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a Contract, it may fall under tort. The damages are unliquidated and are decided only by the common sense of the courts. The details are as follows:
Distinction between Tort and Crime
Tort Crime Tort occurs when the right available to all the persons in general (right in rem) is violated.
Crime occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society.
Act is comparatively less serious and affects only the person. Act is comparatively more serious and affects the person as well as the society.
Intention is usually irrelevant. In most torts, however there are a few exception such as Malicious prosecution, defamation etc., where motive plays a part and are called intentional torts.
Duty is fixed by the law of the land and is towards all the persons.
Duty towards each other is affixed by the contract agreed to by the parties.
Doctrine of privity of contract does not apply because there is No contract between the parties. This was held in the case of Donaghue vs. Stevenson 1932.
Only the parties within the ambit of ‘privity of contract’ can initiate the suit.
Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort.
When a contract is void, there is no question of compensation. For example, a contract with a
minor is void ab initio and so a minor cannot be held liable for anything.
In some torts like malicious prosecution, motive is relevant. Motive is immaterial in contracts.
Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs. State of J K AIR 1986 - the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Justice is met only by compensating the victim for actual loss.
Distinction between Tort and Quasi – Contract
Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. The judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law, the purpose being prevention of “unjust enrichment”.
Tort Quasi - Contract
Duty is fixed by the law No Duty owed to persons for duty to repay money, or, benefit received.
Victim is compensated for unliquidated damages as per the judgment of the judges.
In quasi – Contracts, the damages recoverable are usually liquidated damages.
.A tort can occur between strangers. There need not be any relationship between parties.
In case of quasi-contract the parties are not usually strangers.
CONSTITUENTS OF TORT Injuria sine Damnum
Injuria sine Damnum 1.. The Latin word ‘injuria’ refers to not just a physical injury, but an infringement, or, a violation of a legal right, or invasion of individual interests. The latin word ‘damnum’ refers to losses.
- In cases of injuria sine damno, i.e., the infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. Every person has an absolute
right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In India, the same principles have been followed.
- The Privy Council has observed that “there may be, where a right is interfered with, injuria sine damno sufficient to found an action: but no action can be maintained where there is neither damnum nor injuria.
- In the leading case of Ashby v. White, (1703) 2 Lord Raym 938, the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless it was held that an action lay. In this case the returning officer has acted maliciously.
- Bhim Singh vs State of J K, AIR 1986 SCC 494 - Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was released later, he was awarded Rs. 50,000/= as exemplary damages by Supreme Court.
- Municipal Board of Agra v Ashrafi Lal (1921) 44 ALL 202. The defendant’s name was wrongly omitted from the electoral roll and he was deprived of his right to vote. The lower court ruled in favour of defendant which was affirmed by High Court holding that the act of omission / refusal of returning officer is an infringement of defendant’s legal right to vote for which action lies against the person depriving him his right.
Damnum sine Injuria
In cases of damnum sine injuria, i.e., actual and substantial loss without infringement of any legal right, no action lies. Mere loss in money or money’s worth does not of itself constitute a tort. The most terrible harm may be inflicted by one man on another without legal redress being obtainable. There are many acts which, though harmful, are wrongful and give no right of action. “ Damnum” may be absque injuria.
In Gloucester v Grammar School [1441 YB11 Henry IV, 47], defendant set up a rival school to that of plaintiff with the result, the plaintiff was forced to reduce tuition fees substantially as the boys were moving out. Plaintiff filed to claim damages. HELD that plaintiff had no cause of action on the ground that “bona fide” competition can afford no ground for action. This is a case of ‘damnun sine injuria’.
In Quinn v. Leatham, [1901] AC 495, defendant set up a rival school next door to the plaintiff’s and boys from the plaintiff’s school flocked to defendant’s school. In this case, it was held that no action could be maintained. Competition is no ground of action whatever damage it may cause, provided nobody’s legal rights are infringed.
In Mayor of Bradford v Pickles (1895) AC 597, When Bradford Corporation refused t buy his land, the defendant got annoyed and sank a shaft in his own land. This diminished and discolored the underground water flowing into plaintiff’s land, who then sued the defendant on the ground that his
Condition and inquiry. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.
On principle such accident excludes liability. It may seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all. No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbor harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbor against harm which Edition: current; Page: (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbor by pure accident, it is not apparent why I should be liable more than if the stick had been in another man’s hand. If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man’s death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man’s act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented. But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.
Apparent conflict of authorities. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Judge O. W. Holmes has put it “acts at his peril.” Such seems to have been the early Germanic law, and such was the current opinion of English lawyers until the beginning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental jurisprudence; and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense
here contended for by Courts of the highest authority in the United States. To these decisions we shall first call attention.
American decisions: The Nitro-glycerine Case. In The Nitro-glycerine Case(b) the defendants, a firm of carriers, received a wooden case at New York to be carried to California. “There was nothing in its appearance calculated to awaken any suspicion as to its contents,” and in fact nothing was said or asked on that score. On arrival at San Francisco it was found that the contents (which “had the appearance of sweet oil”) were leaking. The case was then, according to the regular course of business, taken to the defendants’ offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with “in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents.” The defendants admitted their liability as for [126] waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building.
Doctrine of Supreme Court; no liability for accidental result of lawful act without negligence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage: and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident. “No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own.”
Brown v. Kendall (Massachusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachusetts. There the plaintiff’s and the defendant’s dogs were fighting: the defendant was beating them in order to separate them, and the plaintiff looking on. “The defendant retreated backwards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.” The action was trespass for assault and battery. It was held that the act of the defendant in itself “was a lawful and proper act which he might do by proper and safe means;” and that if “in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie.”
where the general question was more or less discussed. Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invite fall on B.’s land, this does not justify A. in entering on B.’s land to carry them off. And by Choke, C. J., it is said, not that (as Brian’s view would require) A. must keep his thorns from falling on B.’s land at all events, but that “he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out.”
Weaver v. Ward. Another case usually cited is Weaver v. Ward. The plaintiff and the defendant were both members of a trainband exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant’s piece. It is a very odd case to quote for the doctrine of absolute liability, for what was there Holden was that in trespass no man shall be excused, “except it may be judged utterly without his fault;” and the defendant’s plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case, which professes to follow Weaver v. Ward, really departs from it in holding that “unavoidable necessity” must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meager to be of any value
All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon. It is not clear to what extent the judges intended to press them. According to Wilson’s report, inevitable accident was allowed by all the judges to be an excuse. But Blackstone’s judgment, according to his own report, says that nothing but “inevitable necessity” will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion; and the other judgments are stated as taking the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in trespass (as distinguished from an action on the case) is unqualified as regards the immediate consequences of a man’s act, but also is limited to such consequences
Leame v Bray. Then comes Leame v. Bray(x), a comparatively modern case, in which the defendant’s chaise had run into the [132] plaintiff’s curricle on a dark night. The defendant was driving on the wrong side of the road; which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that the proper form of action was trespass and not case. Grose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Rylands v. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion(y). Such is the authority for the doctrine of strict liability. Very possibly more dicta to the same purpose might be collected, but I do not think anything of importance has been left out(z). Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable.
Cases where exception allowed. On the other hand we have a series of cases which appear even more strongly to imply, if not to assert, the contrary doctrine. A. and B. both set out in their vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.’s vessel is damaged by the wind and sea driving B.’s against it. On such facts the Court of King’s Bench held in 1770 that A.
could not maintain trespass, “being of opinion that the original act of the defendants was not unlawful”. Quite early in the century it had been held that if a man’s horse runs away with him, and runs over another man, he [133] is not even prima facie a trespasser, so that under the old rules of pleading it was wrong to plead especially in justification. Here however it may be said there was no voluntary act at all on the defendant’s part. In Wakeman v. Robinson, a modern running-down case(c), the Court conceded that “if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie;” thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of misdirection in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declaration of the general rule was accepted by the Court of Queen’s Bench, though the decision again was on the form of pleading.
Holmes v. Mather. Lastly, we have two decisions well within our own time which are all but conclusive. In Holmes v. Mathew the defendant was out with a pair of horses driven by his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old cases and dicta, that a trespass had been committed. The Court refused to take this view carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid”. Thus it seems to be made a question not only of the defendant being free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in Rylands v. Fletcher, where it is even said that all the cases in which inevitable accident has been held an excuse can be explained on the principle “that the circumstances were such as to show that the plaintiff had taken that risk upon himself”
Stanley v. Powell. More lately, in Stanley v. Powell, Denman J. came, on the English authorities alone, to the conclusion above maintained, namely that, where negligence is negative, an action does not lie for injury resulting by accident from another’s lawful act
Conclusion. These decisions seem good warrant for saying that the principle of The Nitro-glycerine Case and Brown v. Kendall is now part of the common law in England as well as in America. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself under the form of determining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful.
Volenti non fit iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be
Rescuers
For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A rescuer would not be considered volens if:
- He was acting to rescue persons or property endangered by the defendant’s negligence;
- He was acting under a compelling legal, social or moral duty; and
- His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence.
An example of such a case is Haynes v. Harwood [1935] 1 KB 146, in which a policeman was able to recover damages after being injured restraining a bolting horse: he had a legal and moral duty to protect life and property and as such was not held to have been acting as a volunteer or giving willing consent to the action - it was his contractual obligation as an employee and police officer and moral necessity as a human being to do so, and not a wish to volunteer, which caused him to act. In this case the court of appeal affirmed a judgement in favor of a policeman who had been injured in stopping some runaway horses with a van in a crowded street. The policeman who was on duty, not in the street, but in a police station, darted out and was crushed by one of the horses which fell upon him while he was stopping it. It was also held that the rescuer's act need not be instinctive in order to be reasonable, for one who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse.
By contrast, in Cutler v. United Dairies [1933] 2 KB 297 a man who was injured trying to restrain a horse was held to be volens because in that case no human life was in immediate danger and he was not under any compelling duty to act.
Unsuccessful attempts to rely on volenti
Examples of cases where a reliance on volenti was unsuccessful include:
- Nettleship v. Weston [1971] 3 All ER 581 (Court of Appeal)
- Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225 (Court of Appeal).
In the first case, the plaintiff was an instructor who was injured while teaching the defendant to drive. The defence of volenti failed: that is, because the plaintiff specifically inquired if the defendant's insurance covered him before agreeing to teach. In the second case, a doctor went in to try to rescue workmen who were caught in a well after having succumbed to noxious fumes. He did so despite being warned of the danger and told to wait until the fire brigade arrived. The doctor and the workmen all died. The court held that it would be "unseemly" to hold the doctor to have consented to the risk simply because he acted promptly and bravely in an attempt to save lives
Necessity
In tort common law, the defense of necessity gives the State or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from common law is necessitas inducit privilege quod jura privata, "Necessity induces a privilege because of a private right." A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages
Private necessity
Private necessity is the use of another's property for private reasons. Well established doctrines in common law prevent a property owner from using force against an individual in a situation where the privilege of necessity would apply. While an individual may have a private necessity to use the land or property of another, that individual must compensate the owner for any damages caused. For example:
A strong wind blows a parachuting skydiver off course from his intended landing zone. He must land in a nearby farmer's field. The skydiver tramples on the farmer's prized roses, and the farmer hits the skydiver on the head with a pitchfork. The skydiver can invoke the privilege of private necessity for trespassing in the farmer's fields but will have to pay for the damage caused to the roses. The farmer will be liable for battery because the use of force in defense of property is not privileged against an individual who successfully claims private necessity.
In American law, the case most often cited to explain the privilege of private necessity is Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).
Vincent v. Lake Erie Transportation Co. Facts
Defendant Lake Erie was at the dock of plaintiff Vincent to unload cargo from Reynolds, the steamship owned by the defendant. An unusually violent storm developed. Lake Erie was unable to leave the dock safely and deckhands for the steamship instead tied the Reynolds to the dock, continually changing ropes as they began to wear and break. A sudden fierce wind threw the ship against the dock significantly damaging the dock.
Is compensation required when there is damage to another's property due to a private necessity?
UNIT II
NEGLIGENCE
Duty of Care
The idea of a duty of care in the tort of negligence has developed through judges making decisions in cases. This started in a negligence case of Donoghue v Stevenson (1932) where the claimant (Mrs. Donoghue) went to a café with a friend. The friend bought her a drink of ginger beer and ice cream. The bottle of ginger beer had dark glass so that the content could not be seen. After drinking some of it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and decomposing) snail. This appalled Mrs. Donoghue and she became ill as a result of the sight and the ginger beer she had already drunk.
Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper based on contract because she did not buy the ginger beer. Mrs. Donoghue’s friend could claim against the café in contract, but had not suffered any loss apart from the fact that she had bought defective goods; she could get her money back, but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue claimed damages against the manufacturer, Stevenson. Her claim was for the resulting shock and stomach upset, which she claimed was caused through drinking the ginger beer.
The court had to decide whether her claim against the manufacturer of the ginger beer could succeed. This led to Lord Atkin’s famous statement:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Donoghue v Stevenson (1932) was the first successful attempt to set out a general principle with respect to the concept of the duty of care. How as lawyers realised this principle could be manipulated to be used with different types of situations, the test was reformed to form the three-part test in the case of Caparo v Dickman (1990).
The general test set in Caparo requires three elements to be demonstrated:
- It was reasonably foreseeable that a person in the claimant’s position would be injured,
- There was sufficient proximity (closeness) between the parties,
- It is fair, just and reasonable to impose liability on the defendant.
All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the claimant. Each part must be explained and proved separately.
Caparo Test
The First Part – Foreseeablility
This is an objective test: would a reasonable person in the defendant’s position have foreseen that someone in the claimant’s position might be injured? In Donoghue v Stevenson (1932) it can be seen that failing to stop a snail getting into a bottle will affect the consumer (Mrs. Donoghue) of the contents. This is a consequence of producing food that has foreign bodies in it, and a reasonable person in the defendant’s position (a soft drink manufacturer) would foresee that the claimant (a consumer) might be injured.
In Kent v Griffiths (2000) a doctor called for an ambulance to take a patient suffering from a serious asthma attack to hospital immediately. The ambulance control centre replied ‘okay, doctor’. The ambulance, without a satisfactory reason, failed to arrive within a reasonable time. The patient suffered a heart attack which could have been avoided if she had been taken to hospital earlier. It was reasonably foreseeable that the claimant would suffer harm from the failure of the ambulance to arrive.
In Jolly v Sutton London Borough Council (2000) a boy, aged 14, was paralysed when a boat he was attempting to repair slipped on top of him. The boat had been abandoned on land belonging to the council by a block of flats. The council knew that the boat was in dangerous condition and that children were likely to play on it. The House of Lords held that attempting to repair the boat was not so very different from normal play, so the injury to the claimant was reasonably foreseeable.
In some cases the courts have decided that is not reasonably foreseeable that the claimant would suffer harm. For example, in Bourhill v Young (1943) a motorcyclist going too fast, crushed into a car and was killed. Mrs Bourhill, who was eight months' pregnant, was about 50 yards away. She did not actually see the events take place but had heard the incident take place. When she saw the blood on the road, she suffered shock and her baby was stillborn. She claimed against the motorcyclist’s estate. The court decided that the motorcyclist did not owe her duty of care as he could not have reasonably foreseen that she would be affected by his negligent driving.
The Second Part – Proximity
Even if the harm is reasonably foreseeable, a duty of care will only exist if the relationship of the claimant and the defendant is sufficiently close. This can be seen in the case of Osman v Ferguson (1993) where the police officers knew that there was a real risk of an attack on victim. The victim was the murdered by the attacker. The court held that there was a sufficiently close relationship between the police and the victim. However, the case did not succeed because it was ruled that it was not fair, just and reasonable to impose a duty of care on the police (which is the third part of the test).
The Third Part – Fair, just and reasonable
