iF THE TAMIL NADU Cz) Dr. AMBEDKAR LAW UNIVERSITY a (State University Established by Act No. 43 of 1997) M.G.R. Main Road, Perungudi, Chennai - 600 096. LAW OF TORTS STUDY MATERIAL By A.Vijayalakshmi Assistant Professor Department of Criminal Law The Tamil Nadu Dr.Ambedkar Law University ChennaiPREFACE The course matenal for the subject of “Law of Torts” includes the simplified version of the explanations of the subject according to the prescribed syllabus It has been revised as per the updated decisions of the Supreme Court, various High Courts and Enghish cases As Law of Torts 1s a developing subject in India, this course material tries to apptoach the students yunsprudentially As the protection of private legal rights of every individual citizens and consumerismis the significant feature of the tort, this has been dealt in advance Vital areas like, General Defences, Vicarious Liabihty, Specific torts ike, Nuisance, Negligence, Defamation and Strict Liability and Remedies are facihtate with recent judgments An over view about Compensation under Motor Vehicles Act, also discussed with Tbeheve that this material would be a best supportive document along with the prescribed text book for the students for the better understanding of the subject I would like to register my grantude to Prof Dr P Vanangamudh, Hon'ble Vice-Chancellor, TheTainil Nadu Dr Ambedkar Law University, and Prof Dr $ Narayana perumal, Director, U G. Course, School of Excellence in Law, for providing me this opportunity and for thesr valuable guidance and ideas to shape up material A. Vijayalakshmi Assistant Professor Department of Gnminal Law ‘The Tamil Nadu Dr Ambedkar Law University Chena,CONTENTS SNO CHAPTER PAGE NATURE OF TORT GENERAL DEFENCES CAPACITY 15 VICARIOUS LIABILITY 20 VICARIOUS LIABILITY OF THE STATE 25 REMOTENESS OF DAMAGES 29 TRESPASS TO THE PERSON 31 DEFAMATION 35 NUISANCE 41 NEGLIGENCE a7 CONTRIBUTORY NEGLIGENCE AND COMPOSITE NEGLIGENCE 32 ABUSE OF LEGAL PROCEDURES 55 LIABILITY FOR DANGEROUS PREMISES: 58 LIABILITY FOR ANIMALS LIABILITY FOR DANGEROUS CHATTELS TRESPASS TO LAND co} ‘TRESPASS TO GOODS, DETINUE AND CONVERSION, 7 18 RULES OF STRICT AND ABSOLUTE LIABLITY 69 19 DEATH IN RELATION TO TORT. 2 20 REMEDIES Ss KR COMPENSATION UNDER MOTOR VEHICLE ACTOBJECTIVES ‘The law of touts prescribes standard of human conduct and provides for the mechanism for redressal of cavil wrong and inyuties mainly through compensations and other remedies ke myunctions ete ‘The object of this paperisto provide understanding to thestudents about the nature, meaning and fundamental application of law of torts This particular paper, law of torts has uts origin in English Common law which underwent various changes But the position of this law in India remains same without any cochfication, except m some areas like Consumer protection, Workmen Compensation, Motor Vehicle Act ete Law oftorts mainly depends on the interpretation of yadges, so 118 also equally important to learn and practice the skill of cases, and apply the principles involved mit ‘Thus paper also includes other legislations hike Motor Vehicles Act, CrPC, Constitution of India, as some of the provisions tn these legislation includes principles and procedures for claiming compensation Books for References 1 Dr R K Bangra— Law of Torts including Compensation under Motor Vehicle Act and Consumer Protection Act 2 BM Gandin—Law of Torts with Law of Statutory Compensation and Consumer Protection 3. Avatar Singh & Harpreet Kaur—Introduction to Law of Torts and Consumer Protection 4° Ratanlal and Dhitajlal— The Law of Torts 5 A Lakshimkanth & M Sridhar— Ramaswamy lyer's The Law of Torts Websites to refer article, reports and cases 2 yrww lawcommussionofindia nic in—to —refer reports passed bt the Law Commussion of, India relating to amendments in law of torts and compensatory yansprudence 2 wwwaindiskanoon com, www mamuparta com—to refer cases 3. www hemonline org, www ystor org —to refer article related to torts both nationally and internatuonallyCHAPTER} THE NATURE OF TORT Synopsis Nature and Definition, b Definition of Tort, © Difference Tort and Crime, Tort and Breach of Contract, Tort and Quast Contract, 4 Essentualsof tort Damnum sine snyuria, Inyuna sine damno, © Mental element and tortious habihty, £ Malice im Law and Malice in fact INTRODUCTION increasing DEFINITION. There are vanous definitions, which indheates the nature of this branch oflaw, which includes, Sof ae means a cwil wrong which is not exclusively a breach of contract or breach of tras’ ‘Uss 20m) of the Limitation. Act,1963 d _ Teasaninfnngement ofa nghtin rem of a pnvate individual giving a night of compensauion at the suit of the injured party—-according to FraserFrom the above defimition its clear that, though it may vary from person to person, the basic idea which is indicated by these definitions, eh) fame)s On iaecall eee eae CIVIL WRONGBICIN IL WRONG ISATORI ‘As staved earher, no such definition of tort bas been possible which could explain this wrong by _mentoaang various elements, the presence of which could be considered to be atort Wemay define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust, which could be technically classified as follows, (uiyThis wrong —_ by anucnen be (Torts acwwil ‘unliquidated wrong, damages (This wrong 1s other than a mere breach of contract or breach of trust (1) Tort 1s a civil wrong: ‘Tort belongs to the category of cwil wrongs The basic nature of civil wrong 1s different from a cnmunal wrong In case of a civil wrong, the victim will institute a suxt for damage against the wrongdoer ‘The plamuff (victum) 1s compensated by the defendant (wrongdoer) for the njury caused But in the case of ‘cnminal wrong, on the other hand, the craminal case has been mutated by the State agamst the crumnal and more over the victim in the cnmunal case 1s not compensated. Criminal Justice 1s admimistered by punishing the wrongdoer There are instances where, a simular act will fall under both the laws (tort and crime), in which the remedies are available concurrently There would be a civil action by which the plaintiff could be compensated and under criminal action, the wrong doer would be pumushed. (2) Tort 1s other than a mere breach of contract or trust ‘Though tort isa cwal wrong, t snot exhaustively any other Jand of envil wrong If the wrongs mere breach trust or contract, then its nota tort Furst we have to see whether the wrong 1s crimmnalor ctvil, fit ascvil wrong, further we have to decide whether that ss recognized by any other category of civil wrong like ‘preach of contract or trust [fits found that the wrong 1s nether mere breach of contract or trust, then the wrong is tort There are circumstances where a single transaction of wrong give rise to two ot more civil 2@) Tort is redressal by an action for unliquidated damages As damage (compensation) 1s the mayor remedy for tort, the wrong doer has to compensate (money Compensation) the nyured party after the commission of the wrong As the wrong commited by thedefenians cannot be restored back, the only thing which can be done an such a case isto see what the money equivalent te the harm committed is In tort money compensation 18 not the only remedy available, someteve, other ‘emedhes are also available ike ‘injunction’, for eg in case of musanice,ryured party would seek for immediate remedy s0 as to prevent such nunsance by way of restzaining the wrong doer rather, than getting money compensation. Generally damage s the only remedy in law of tortand that is what ditinguishe nt hen sine Damages in the case of tort are unliquidated It 1s the fact which enables us to distinguish it from other cwval wrong like breach of trust or contract, where the damages may be hgudated Liquidated damages means is left to the discretion afthe court, the damages are said to be unliquidated damages Generally the parnes are ot known toeach other until the torts committed and moreover, itis dlficul to visualise beforchant he Guantur of loss in the case of «tort and, therefore, the damages to be paud are leit to be determined et the discretion of the court. Such damages, therefore, are unliquidated The nature of a tort can be understood by distinguishing: (1) Tort and Crime distinguished: and musance Ifthe victum wants to sue the wrongdoer under civil hability, he has vo approach the rules of tots and ifhe decided to mitiate cruminal proceedings against the offender, enminal law enll apply The rule §pplicable mn tort different from crime Foreg incase of defamauon, “truth” is the base clemeresa bien Jintes the proceedings agamnst the culptat In caseof tort, the injured party may entered into compromise with the wrong doer and withdraw the case after settlement But in case of crime, tis ampossible in all cases Ceneranto compromise outside the courtand wath draw the complamnt, unless the Act provide for compromise (Compoundable) Generally in case of tort, the remedy 1s monetary compensation and the idea behund awarding Compensation to the injured party 1s to make good che loss suffered by him The punishment under enumnet aw protects the society by preventing the offender from commutting further offences and deterring him and other potential offenders from committing wzong Moreover, imprisonment and arrest under ers inal Ine and under civil law are different Under crminal law, unprisonment and arrest are meant as penalty and under crval law, 1t1s to pressurize the defendant to perform certain dutyCRIME TORT Pubhe wrong, Private wrong, Elements may vary from crmeto nme Elementsaredetermined — "The proceedings against the accused Injured party himself files a suit against brought by the State the wrongdoer. No place for settlement, except in some cases. | Compromise can be done at any stage of the case between the parties Remedy 1s none other than punishment, Remedy 1s monetary compensation except U/s 357 of Cr PC, paid out of fine Imprisonment and arrest as penalty Imprisonment and arrest as pressure to perform the duty Q) Tort reach of Contract distinguished: A breach of contract results from the breach ofa duty undertaken by the parties themselves. The violation of the agreement which 1s made by the pares with their free coasent 1s known as breach of contract. In case of tort, the duties which are said to be breached 1s not undertaken by the parties, but which are imposed by law For eg Uhave a duty not to cause any nuisance or defame others, not because I have voluntanly undertaken anyone of these duties on me, but the law imposes such a duty on every members of the State ‘The duty amposed by law under law of tort 1s not agamst any individual but aganst the society at large However, the myured party alone 1s entitled to sue against the wrongdoer In case of Contract, the duty 4s based on Privity of Contract, where in each party owes a duty only to the other contracting party, and not to those who are strangers to the agreement For eg A (Entered into contract with) B, Ais answerable only to B, and Bis answerable only to A, and not to any of the strangers For this the best example case 1s Donoghue v Stevenson, whach 1s popularly knownas Ginger beer case, in which the House of Lords has interpreted the concept of Prvty of contract and law of tort. In this case, A went toa restaurant with his friend and bought one bottle of Ginger beer manufactured by the defendant. The women fiend consumed halfof the contents, and wher: che remaining art was poured mn to 2 glass and they found the decomposed body of asnail As the beer was served in opaque bottle, A was notable tosee the contents in the bottle The woman friend brought.asurt agamnst the manufacturer of rhe beer for negligence and serious illness as consequence The manufacturer contented that, they had no contract with the consumer but only with the restaurant who sold the drinks So they pleaded that, only the shop keeper is liable and not them The House of Lords nightly observed that, that the manufacturer owes a duty to all those who intend to consume his product Thus, in law of tort, the liability 1s based on ducy imposed by law and not on the basis of contract Asthe main remedy under both the laws 1s damages, an breach of contract, the damage may be liquidated and determined by the parties at the time of entering into contract But m case of tort, the damages are unliquidated, and 11s at the ltberty of the court to award any amount of damageTORT BRF ACH OF CONRTACT. Breach of duty imposed by law on Beach of duty undertaken by the parties themselves. members ofthe society through agreement The duty 1s not based on Privity of Contract_| ‘The duty is based on Privity of Contract, [The damage is unliquidated ‘The damage is hquidated Privaty of Contract and Tortious hability Ifthere tsa contract between ‘A’ and ‘B’, and asa result of which, if'C" sustained loss because of breach of contract by ‘A’ and ‘B’, the question now 1s whether 'C’ who 1s a stranger, can sue °A' or 'B?’ In law of Contract, Cean sue A or Bor both under Privity of Contract but under law of tort, we don’t need such doctrine to establish the habihty of the wiongdoer Is 1t Law of Tort of Law of Torts? Salmond posed this question mn this regard, ‘law of Torts consists of fundamental genetal principles that 11s wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse or does it consist of a number of specific rules prohubung ceitain kind of harmful acavity, and Jeaving all the residues outside the sphere of legal responsibility” In other words, the question 1s (1) 18 low of tort, so that every wronghul act, for which theres 20 Justification or excuse to be treated as a tort, or (2) 1s it the law of torts, consisting only of a aumpber of specific wrongs outside which the liability under this branch of law cannot arise Winfield preferred the 1* of these alternative and argues its law of tort and not law of torts Salmond opted the second alternative which argued that sts law of torts, under which the hability arises when the wrongs covered by anyone or the other nominate torts "There is no general principle of habnlity and sf the plamtiffcan place his wrong in any of the pigeon-holes, each containing a labelled tort, he will succeed, and thns theory 1s called “Pigeon Hole”theory Ashby v. White case clearly favors the Winfield’s theory, by recogmzing the doctrine Ubi jus sbi remedium which means where there is right, there 1s remedy The judges opined that “if man will multiply injunes, action must be multiphed too for every man who is myured ought to have recompense ESSENTIALS OF TORTS To constitute an act as tort, 11s essential that the following two conditions are satisfied, (1) There must be some act or omission on the part of defendant and, The act or omission should result in legal damages 5ACT OR OMISSION To make a person hable for a tort, he must have done some act which he is not supposed to do or ‘omitted to do some which he 1s supposed to do, exther positive or negative For eg defamation, trespass or false tmprsonment comes under “ACT” and neghgence comes under “OMISSION” In Glasgow Copr v. Taylor case, the corporation which maintains a public park, fails to put proper ferice to keep the children away from a poisonous tree anda child plucks and eats the frusts of the poisonous tree and ches ‘The corporation would be hable for such omission Similarly im “Municipal Corporation of Delhi v Subhagwant?, 1 ‘was clearly interpreted that due to the neghgence of Delhi Mumctpal Corporation, the clock tower which ‘was situated in the heart of the city, which was not maintained properly fell down and kalled a number of people It may be noted that the wrongful act or omission must be one recognized by law and not based on moral or societal values LEGAL DAMAGES (:njurtz sine damno & damnum sine injuria) In order to be successful in an action for tort, the plantiff has to prove that there has been a legal damage caused to hum Unless there has been violation of a legal mght vested in the plarntyff, there can be no action This is expressed by the maam' /ryurza sine damno’, injurta means infrmgement of anght conferred by law on the plamutf and damno means substantial harm, loss or damage in respect of money, comfort, health etc So when there has been violation of legal nghts(snjura)but without causing any harm (darmnum/ damno), the plaintiff can still go to the court of law because no violation of a legal rights should go unredressed Reeiprocally, when there is any harm without violation of legal nghts cis not acuonable prese Thus the test to determine whether the defendant should or should not be lable 1s not whether the plaintiff has suffered any Joss or not, but the real test is whether any lawful nghts vested in the plamuff'has been violated or not Inguria sme damno (Violation of Legal Rights without causing harm) Acuonable only with proof Actionable per se— actionable without Firstly those are torts which are actionable perse1 e , actionable without the proof of the proofofany damages or loss. eg trespass Secondly, the torts which are actionable only on proof of some damages caused ‘The two important cases which this could be under stood 1s, (1) Ashby v. White & (2) Bhim Singh v. State of f&K In the first case, the plamtuif who was a eligible candidate to vote but was not allowed to cast hs vote by the returning officer, the defendant No loss was caused because of refusal by the defendant, as the candidate whom he intended to vote won the election But the House of Lords, has decided that defendant was hable when the plaintiff brought a sutt against the defendant, as, sf the plamtff has a night, he must be permuted to enjoy it without any prevention and xf so, the remedy should be provided In the second case, the plamtiff who was an M I. A of J&K Assembly was wrongfully detamed by the police, while he was going to attend the Assembly session He was not produced before the JM within the prescribed time Because of chis he was deprived of his Constitutional nghts to attend the assembly session and also there was violation of fundamental nghts of personal hberty which1s guaranteed under Art21 of the Consutution of India He was awarded with the compensation of Rs 50, 000/- along with hus release from jailrom these two cases, it 1s clear that, loss suttered by the plaintiff is not relevant tor claiming compensation from the defendant, but only the violation of legal nghts Damnum_sine snjuria: (Causing harm without violaung harm) It means causing harm wathout violating legal rights of others Causing of damages however substantial toanother persons not actionable in law unless there is also violation of legal nghts of the plamaff In Grane ¥ Austrahan Karting Mulls, Lord Wright has nghtly pointed out chat, “The mere fact that a man is anyured by another's act gives in 1tself no cause of action, 1f the acts deliberate, the party inyured will have no claim in law even though the injury 1s intentional. so long as the other party 1s exercising a legal nights” The land mark case for this maxim 1s Glouster Grammer School case, the defendant, who was a school master, started a rival school opposite to plaintiffs school Because of this, the plamtuff had to reduce his schoo! fees and due to that he suffered loss When he filed a suit to claim compensation from the defendant, the court held that, without violating the legal nghts ofa person, even there1s loss, 1t1s nor maintainable The other umportant cases under this head are Mogul Steamship co v McGregor Gow & Co, Action v. Blundell, Chesmore v.Richards, P Sethuramayya v. Mahalakshmamma, Dickson v Reuter’s Telegram Co. In Town Area Committee y Prabhu Dayal, the plamuff constructed 16 shops on the on the old foundations of the building ‘The said construction was made without giving an notice tothe municipality and vwathout obtaining proper sanction ‘The defendants, the municipality authonues demolished the building for the violation of the norms The plamtiff argued that the action of the defendant was rot legal and it was with mala fide mtennon It was held that the defendants was not held hable as no “unjuria” could be proved because the plaintiff constructs. building illegally and such demolition would not amount to causing “njuria” co the plainuff And the similar was held in Pagadala Narasimham v. Commissioner and Special Officer, Nellore Municipality” MENTAL ELEMENTS IN TORTIOUS LIABILITY Mental element 1s an essential element in most of the forms of crimes Generally in cruminal law ‘mens reaor guilty minds tequired to create the hability So, no one is punishable unless 11s proved that he sintended to commut someact But itis not easy to make any such generalization about hability in tore Fault when relevant _(State of mmm) In many of the branches of torts like assault, battery, false imprisonment, deceit, malicious srosecution, the state of mind of a person 1s relevant to ascertain the liability Sometimes we may compare the conduct of the defendant with that of the defendant with that of a reasonable man and make him habieonly if hus conduct falls below the standard except of a reasonable man When the circumstance demand care anda person fail to perform the duty to take care, he is able for the tort of neghgence Mental element may become relevantn another way also Ifthe defendant's conducts innocent nso faras the act done was due to an inevitable accident, he may be excused from hability Liabity without Fault Malice m Fact—~evil motive ‘There are certain areas where the mental element 1s quite relevant and the habilty anises even without any wrongful intention on the part of the defendant In such cases, innocence of the defendantor an honest mistake on his part 1s no defence, for eg, Tort of Conversion (Consolidated Co v Curtis), defamauion (Cassidy v. Daily Mirror Newspaper Led) and vicarious liability (Rylands v Fletcher) 7Malice CE Cae Poe Od ‘The term ‘malice’ has been used in two different senses (1) 1m its legal sense, 1t means a willful act done without just cause or excuse and known as malice zn Jaw, and (2) in its narrow sense it means an evil motive, and the same 1s known as malice in fact Malice in Law In the technical legat sense, malice 1n law does not connave an act done with an improper or eval motive but simply signifies, “ a wrongful act done intentionally without yust cause or excuse’ Malice, in its legal sense, thus means such as may be assumed from the domg of 2 wrongful act intentionally but without just cause or excuse or for want of reasonable or proper cause Malice in Fact: Inats popular sense or as ‘malice in fact’ or ‘actual malice’, t means an evil motive for wrongful act ‘When the defendant does a wrongful act with a feeling of spite or ill-will, the acts said tobe done ‘maliciously’ ‘Motive is not relevant to determine a person's abihty in the law of torts A wrongful act does not become Tawfal merely because the motive 1s good Similarly, a lawful act does not become unlawful because ofa bad mote Excepnon to the Rule: In the following exceptional cases, the malice or evil motive becomes relevant in determsning habshity under the law of torts, (@) When the act 1s otherwise unlawful and the wrongful intention can be gathered ftom the carcumstances of the case (b)' _Intorr of deceit, conspiracy, malicious prosecution one of the essentials to be proved by the plantiffs malice of the defendant (©) Incertain cases of defamation, when qualified privileged or far comment 1s pleaded as a defence, monve becomes relevant (@ Causing of personal discomfort by an unlawful motive may cum an otherwise lawful act into nuusance {© Malice or evi! monwve may result in aggravation of damagesCHAPTER — II GENERAL DEFENCES SYNOPSIS: Volunti non fit injursa, Plaintaff the wrong doer, Inevitable accident, Act of God (vis mayor), Private Defence, Mistake, Necessity, eI anne enn Statutory Authority Introduction: ‘When the plamtiff brings an action against the defendant for a particular tort, providing the existence ofall the essentials of that tort, the defendant would be able for the same The defendant may however, even in sucha case, avoid his lability by taking the plea of some defence ‘There are some specific defences which are pecular to particular offences ‘There are some general defences which may be taken against acon for number of wrongs The general defences discussed im this chapter are as follows, I Volunti non fit injuria Essentials Conseat (Fee wathout ‘thecat, la vescue cases and Untan Cantrace Terms ‘Aei1977(F ngland Gaudet compulsion) Mac knstede‘When a person consents to the nfhetion of some harm upon humself, he has no remedy for that tort In such a case, the plaintiff who voluntarily agrees to suffer some harm, he 1s not allowed to complazn for that and his consent serves as good defence Consent to suffer may be express or implied Foreg 1fyou invite any one to your house and you could not him for trespass Many a tume, the consent may be imphed or inferred from the conduct of the parties, eg players of any game hke football and cricket 1s deemed to be agreeing to any hurt Which may be likely m the normal course of the game, a person going on the high way is presumed toconsent to the nsk of pure accidents In the same way the spectators of any race or matches cannot succeed sn clarrning damages +f they Int by any ball or car or any objects For the defence of consent to be available, the act causing harm must not go beyond the limt of what has been consented Some important cases under this defence 1s as follows, (a) Hall v Brooklands Auto ‘Racing Club and (6) Padmavat: v Dugganaika In the 1" case, the plamntiff was a spectator at a motor car race being held m the defendants race track During the race, there was collision between two cars, one ‘of which was thrown among the spectators, thereby myured the plainuff Itwas held that, the plamnffimphedly took the nsk of such anjury, the danger being inherent in the sport which any spectator could foresee Inthe 2! case, while the dnwver was takang the jeep to fill petrol, two strangers took lft m the jeep Suddenly one of the bolts connecting the front wheel to the axle gave way toppling the yeep ‘The two strangers were thrown out and sustained injury and one of them died It was held that neither the driver nor his master 1s could be hable Decause it was a case of sheer accident and the strangers had voluntarily got nto the jeep ‘The other important cases are, Woolridge v Sumner, Thomas v Quartermaine, [ot v. Wilkes. ‘The consent_must be free For the defence to be available, 11s necessary to show that the plaintiff's consent to the act done by the defendant was free Ifthe consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken umpression, such consent does not serve as a good defence Moreover, the act done by the defendant must be the same for which the consent is given In Lakshmi Rajan v. Malar Hosprtal Led, case, the planuff who was a married women aged 40 years, noticed development of a painful lump in her breast During surgery her uterus was removed without any Justfication The defendant, the hospital authonties contented that, based on her consent only the surgery was conducted, so, they were not hable But, the consent ‘was given only to cure the pain in breast and not to remove her uterus which has noeffect with the pain So her consent cannot be taken mto appropriate one When a persons incapable of giving his consent because of hus insanity or minority, consent of such person's parent is suffictent Consent obtained by fraud and compulsion’ Consent obtained by fraud 1s not real and that does not serve as a good defence This was clearly explaned in the maxim, ex crupi causa non oritur action which means for an immoral cause, no action anses Consenc given under circumstances when the person does not have freedom of choice is not the proper consent A person may be compelled by some situation to knowingly under take some nsky work which, he has a free choice, he would not have under taken This mamnly arises in master-servant relationshup Thus there is no voluntr non fit ryura, when servant compelled to do some work inspite of his protests Mere knowledge does not imply assent To avail the defence, two points has to be proved, Q) The plainuaff knew that the nskis there, Q) He, knowing the same, agreed to suffer the harm In Bowater v Rowley Regis Corporation case, the plantiffa car driver was asked by the defendant's foreman to dnve a horse which to the knowledge of both was hable to be bolt The plantuff protested but ultimately took out the horse in obedience to the order ‘The horse bolted and the plantiff was injured thereby 10In Smith v Baker case, the plamuff was a workman im the defendant's quarry. for the purpose of cutting a rock By the help of crane, stones were conveyed from one side to another, and every time the crane used to passes over the head of the plamntuff’ While he was busy in his work, a stone fell fiom the crane and myured him The employers were negligent in not warning him at the moment of a recurring danger, although the plamuff had generally aware of the risk The plaintafffiled a suit against the defendant for compensation, te ‘court order compensation for hum by imposing the habihty on the defendant The other mostmpoztant case, which was clearly interpreted by the court, was Dann v. Hamilton A lady, knowing that the driver of a car was drunk chose to travel in it instead of an ommi bus Due to drivers neghgent driving, an accident was caused resulting in the death of the driver himself and inyuries to the lady passenger Jn an action by the lady passenger agaist the representatives of the driver, the defence of volunti non fit uryurie, was pleaded, but the same was rejected and the lady was awarded with compensation As because the level of intoxication of the driver was no to such an extent of causing accident, the defence was rejected The other important cases are Imperial Chemical Industries v Shatwell Negligence of the defendant: For the defence to be available, 111s further necessary that the act done must be the same to which 1t1s onsented When the plainaff consents to some nsk, the presumption isthat the defendant wall not be neghgence #Tsubmtto a surgical operation, T have no nght of action ifthe operation is unsuccessful But sf the operation suunsuccessful because of che surgeon's neghgence, I can bring an action against. him for that Limitations on the scope of the The scope of application of the doctrine of volunts non fit ryursa has been curtailed, (1) Inrescue cases, 2) By the Unfarr Contract Terms Act, 197 (England) Rescue cases: ‘Rescue cases’ form an exception to the application of the doctrine of vouity non fityyurra When the planuff voluntanly encounters risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defence The landmark case based on this exception 1s, Haynes ¥. Harwood, n this case, the defendant's servant left a two-horse van un attended mastreet A boy threw a stone on the horses and they bolted, causing grave danger to women and children on the road A pohce man who was on the duty side a nearby police station, on seemg the same, managed to stop the horses, but m domg so, he himself suffered serious personal injuries It bemg a ‘rescue cases’ the defence was notaccepted and the defendant were held hable In Baker v TE Hopkins & Sons, due to the employer's negligence, a8 ‘well was filled with poisonous fumes of petrol driven pump and the wo of his workmen were overcome by fumes Dr Baker was called but he was told not to enter the well im view of the risk involved Inspite of that, Dr Baker preferred to go in the well with a view to making an attempt to help the workmen already inside the well He tied himself with a rope around himself and went inside, while two women held the tope at the rope at the top The doctor himself was overcome by the fumes He was pulled from the well and taken to the hospital He however, died on way to the hospital The two workmen inside the well had already died Doctor's widow sued the workmen's employers to clam compensation for her husband's death, the defendants pleaded the defence Irwas held that the act of the rescuer was the natural and probable consequences of the defendant's wrongful act which the later could have foreseen, and therefore the defendant were hable While availing this defence, some question arises Does the rule in Haynes y Harwood would apply 1m cases of rescue of property? The question was answered in Hyett v Great Western Railway Co, in this case, the plaintiff was injured in an attempt to save defendant's railway cars from fire which had occurred due to the negligence of the defendant ‘The plaintiffs conduct was considered to be reasonable and on the basis of the doctrine of Haynes case would applied im this case also The question 1s about the act of llintervention of the rescuer novus actus untervenines which break the chain of causation so that the amtial neghgence of the defendant 1s considered to be a remote cause of the rescuer’s injury From the Hynes case t ‘was held that the act of the zescuer was not such an act which could make the defendant's negligence remote cause of the damage Yolunn non fit injuna and Contributory neghgence—distingmsh J Yolunti non fit isyurais a complete defence In case of Contributory negligence, 1s based on the proportion of us fault an the matter Therefore damages which the plaintif'can claim wall be reduced to the eatent the claimant himself was to blame for the loss 2. In the defence of contbutory neghgence, both the plannff and the defendant are negligent In volunts non fic nyunathe plaintiff may be volensbut at the same tume exercising due care for his own safety 3 Incase of volunti non fit mura, the plantffis always aware of the nature and extent of the danger which he encounters There may, however, be contnibutory neghgence on the part of the plannuffin respect of a danger whch he did not, in fact, know although he ought to have known about it TLPLAINTIFF THE WRONG DOER: Under the law of contract, one of the principles 1s that no court wallaid 2 person who found his cause of action upon an unmoral or an illegal act The maxim x ¢rupi causa non oritur action which means, from an immoral cause no action arises It means that f the basis of the action of the plamtffs an unlawful contract, he will not, 1n general, succeed to hus action ‘The principle seems to be that the mere fact that the plaintiff wasa wrong doer does not disenuitie him from recovering from the defendant for latter's wrongful act In Bird v Holbrook, case the plamoff, a trespass over the defendant's land was entutled to claim compensation for injury caused by a spring gun set by the defendant, without notice, in his garden According to Su Fredrick Pollock, when the plamtuff himself is a wrongdoer. he 1s not disabled from getting damages from the defendant unless some unlawful act or conduct on his own partis connected with harm suffered by humaspart ofthe same transaction We have seen above that merely because the plaintiffs a wrongdoer is no barto an action for the damage caused to him IL INEVITABLE ACCIDENT Accident means an unexpected inyury andif the same could not have been foreseen and avoided, mspite of teasonable care on the part of the defendant, 1t1s mevitable accident Pollack defines as it does not means absolutely inevitable, but xt means not avoidable by any such precaution asa reasonable man Itis thereforea good defence neither if the defendant can show that he neither intended to mure the plantaffnor could he avoid the injury by taking reasonable care In Stan/ey v. Powell case the plamntff and the defendant are the members ofthe shooting club, when the defendant fired at a pheasant, but the shoot from his gun glanced off an oak tree and nyured the plamnff’ It was held that myury was accident and the defendant was not hable In Shridhar Tiwan v. U P State Road Transport Corporation, mn this case, a bus belonging to the UP § RT Corporation reached neat a village, a cychst suddenly came in front of the bus It had ramed and the road was wet Asthe driver tries to avoid hitting the cyclist apphed break, as the road was shppery, the bus skidded on the road and hut the rear portion of another bus which was coming from the opposite direction Itwas found that at the ume, both the buses were being driven at a moderate speed and the accident had occurred despite due care on the part of the dnvers of both the buses It was held that the accident had occurred due to inevitable accident and therefore the defendant Corporation was held not able for the same ‘The other important cases are Assam State Coop, etc Fedaration v. Smt. Anubha Sinha, Holmes y Mather, Brown v. Kendall, Padmavathi v Dugganaika. In Nitro Glycerine and National Coal Board v.Evans has been dealt in deta as accidental damages to the property has been considered not actionable In Nitro Glycerin 12case, the defendant, a firm carers, were given 2 wooden case for being carried from one place toanother The content of the box were not known Finding some leakage in the box, the defendants took the box to ther office building to examine it While the box was being opened, the Nitro-Glycerin in the boa exploded and the office building, belonging co the plantuff was damaged It was held that since the defendants could not reasonably suspect that the box contained Nitro-Glycenin, they were not liable, as the case falls under the category of inevitable accident I ACT OF GOD (vis major). Act of God 1s a defence The rule of Strict Liabuity Le, the rule laid down m Rylands v Fletcher, also recognizes this to be a valid defence for the purpose of hability under that rule Act of God isa kand of mmevitable accident wath the different that m the case of Act of God, the resulting loss anses out of the working of natural forces hike exceptionally heavy rainfall, storms, tempests, tides and volcanic eruptions ‘Two important essentials are needed for this defence Must be working of natural forces Occurrence must be extraordinary and could not anticipate. 1 Working of Natural Forces: In Remalinga Nadar v. Narayan Reddiar, 1t has been held that the criminal activities of the unruly mob, which robbed the goods transported m the defendant's lorry cannoc be considered toan aet of god and the defendant 1s liable for the loss of those goods as a common carrier It was observed that “accidents may happen by reason of the play of natural forces or by interventuon of human agency or by both But 1t1s, only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be Acts of god” The other important land mark case 1s Nicholas v. Marsland, mn which the defence was successfully argued In this case the defendant created some artificial Jakes on his land by damming some natural streams Once there was an extraordinary heavy rainfall, stated to be the heaviest in human memory, as. result of which, the embankments of the lakes gave way The rush of water washed away four bridges belonging to the plamntff It was held that the defendant were not liable for the loss had occurred due to the act of god 2. Occurrence must be extraordinary: In Kallulal v. Hemchand, the wall of a building collapsed on a day when there was heavy rainfall that resulted in the death of the respondent's two children The M P high Court held that the defendant could not take the defence of Act of God in this case, as that much of rainfall during the ramy season was not something extraordinary but only anucipated and guarded against Y: PRIVATE DEFENCE ‘The law permits use of reasonable force to protect one’s person or property Ifthe defendant uses the force which is necessary for self defence, he will not be hable for the haim caused thereby There should be ummuent threat to the personal safety or property [tis also necessary that such force asis absolutely necessary to repel the invasion should be used For the protection of property also, the law permits taking of such measures as may be reasonably necessary for the purpose The cases are Bird v Hallbrook, Ramanuya Mudal: v. M.Gangan deals with private defence In Collns vy. Renison is an example for use of excess force In this case the plaintiff went upona ladder for nailing a board toa wall in the defendant's garden The 13defendant threw him of a ladder and when sued for assault, he took the pleas that he had “gently shook the ladder, which was a low ladder, and gently overturned at, and gently overturned 1t, and gently threw the plaintff on the ground, thereby doing as ttle damage gs possible to the plannff, after the plamnaff refused to come down It was held that the force used was not justifiable. ‘VISMISTAKE: Mistake, whether of fact or of law, 1s generally no defence to an action for tort When a person willfully interferes with the nghts of another peison, 1t 1s no defence to say that he had honestly believed thar there was justification for the same, when in fact, no such justification existed In Consolidated Co v Curtis, an auctioneer was asked to auction certain goods by hus customer Honestly believing that the goods belonged to the customer, he auctioned them and he paid the sale proceeds to the customer But, the goods auctioned by kim were belonged to the plantiff When he sued the auctioneer, the court held that he is hable for the tort of Gonversion, though he raises the defence of mistake To this rule, there are some exceptions when the defendant may be able to avoid lus hability by showing that he acted under an honest but mistaken behef Honest behefin the truth of a statement 1s a defence to an action for deceit VIL_NECESSITY An act causing damage, sf done through under necessity to prevent a greater evil is not a actionable even though harm was caused sntenuonally Necessity should be disunguished from private defence (@)__Innecessiry there 1s an inflcuon of harm on an mnocent person whereas mn private defence, harm1s caused toa planuff who humselfis the wrongdoer (©) Necessity salso different from mevitable accident because, in necessity, the harm isan intended one, whereas in mevitable acerdent, the harm 1s caused 1n spite of the best effort to avond 1t In Leigh v Gladstone, forcible feeding of a hunger strilang prisoner to save her was held to be a good defence to an action for battery ‘The other cases are Cope v. Sharpe, Carter v. Thomas, Kirk v Gregory. In Carter v Thomas, the court held that when the defendant enter in the plaintuffs house to exunguish the fire ts held hable for trespass, as already the firemen are working mside VIH- STATUTORY AUTHORITY ‘The damages resulung from an act, which the legislature authorities or directs to be done, 1s not actionable even thought would otherwise bea tort When an act is done, under the authority ofan act, 1615 complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute Immunity under statutory authonty 1s not only for the harin which 1s obvious, but also for that harm which is incidental to the exercise of such authority In Vaughan v Taff Velde Rail Co,, sparks from an engine of the respondent's railway company, which had been authorized to run the railway, set fire to the appellant's woods on the adjoming land It was held that since the respondents had taken proper care to prevent the emission of spanks and they were doing nothing more than what the Statute had authorized them to do they were not hable ‘The same proportion was again stressed in Hammer Smith Rail Co v. Brand,and Smth v Lond on and South Western Railway Co, ABSOLUTE AND CONDITIONAL AUTHORITY ‘The Statute may give absolute or conditional authority for domg of an act In the former case, even though nuisance or some other harm necessarily results, there 1s no hability for the same When the authority given by the Statute 1s conditional, 1t means that the act authorized can be done provided the same 1s possible without causing nuisance or some other harm Such a condition may be expressed or implied In Metropolitan Asylum District v. Hill, the appellants a hospital authority were empowered to set Up < small-pox hospital in the residential area and the same created danger of infection to the residents of that area So thatst was held that to bea nuisance and the appellants were sssued an injunction to the hospital 14CHAPTER—ITI CAPACITY SYNOPSIS_ 1 Act of State. 2. Corporation. 3. Minor. 4. Independent and joint tortfeasor. 5 Husband and Wife 6 Persons having parental and quasi parental authority 7. Persons having judicial and Executive authority INTORDUCTION; Generally, every person has a capacity to sue, habilty to be sued in tort This chapter wall discuss about certain persons and their position about therr capacity to sue and to be sued fa) Act of State to be discussed how far the State is vicariously hable for the torts committed by them employee, () Corporations :ts legal status to sue and to be sued, (Minor, (@) Independent andJomt tortfeasor, (©) Husband and Wife, () Parental and quasi parental authonty, Judieral and Executve authonty 1+ ACT OF STATE: Re nee 15In Buron v. Denman case, an action was brought against Captain Denman, a captain in the Brush Navy, for releasing slaves and burmng the slave barracoons owned by the plamuff on the West Coast of Africa (Outside British Domumon) The defendant had no authority to do so but his act was ratified by the Brush Government later It was held that 1t was the act of the State and no action Ite The other important cases_are Duff Development Co Ltd v. Kelantan Government, Secretary of State in Council of India v. Kamachee Boye Saheba, Jahangir v Secretary of the State for Indra, Johnstone v Pedlar, Hardial Singh v State of Pepsu, State of Saurashtra v Memon Hay: Ismail and State of Saurashtta(Now Gujarat) v Mohammad Abdulla and others I: CORPORATION A Corporation 1s an artificial person distunct from its members Being an arnificial person, 1t always acts through its agent and servants and as such, 1ts habahty 1s always vicarious for the acts done by others persons It was atone time doubtful whether a corporation could be sued for the torts hike malicious prosecution, if the act 1s done within the course of their employment, a corporation 1s hable for cheir tort act ike an ordinary employer ‘There 1s no doubt that a corporation is always hable sf the scope of authority or employment of its, agents or servants acting on its behalf was within the power (intra vires) of the corporation Whether the Corporation 1s liable for the act done beyond us power (uléra vires? In Poulton v 1 & S.W Ry, case a railway company had the power to arrested the plaintiff for the non-payment of ‘passenger fare’, but the station master arrested the plainbiff for the non-payment of freight payable for the horse’ Tt was held that the railway company was not hable for the decision appears to be that the station master did not have ‘implied authonty’ to make such an arrest on behalf of the rahway company and as such, the latter could not be vicanously hable for the same In another case, Campbell v Paddington Corporation, xt was held that for the purpose of habihty of the corporation for torts, there 1s no need to draw distinction between intra vires & ultra vires torts because a corporation 1s as much liable for both acts done by its representatives as for intra vires acts Thus 2 Cosporation will not escape the habihiy in tort merely because the act done 18 ultra vires of the corporation and therefore, 1t can be made hable for both intra and ultra vires Til : MINOR Capacity to sue A minor has a nght to sue like an adult with the only procedural difference that he cannot himself sue but has to bring an action through his next friend Pre-Natal Injuries: ‘There are no English or Indian cases directly on this point In an Insh Canadian case, Walker v. G.N Ry Co. Of Ireland, the plamtuff, a child sued the railway company for damages on the ground that he had born crippled and deformed because the injury caused to lum before his birth, by an accident due to railway'sneghigence, when the planuff pregnant mother travelled init It was held that the defendant were not hable for two reasons, (a) the defendant's did not owe any duty to the plamtiff'as they did not know about hus existence, (b) the medical evidence to prove the plaintiff's claim was very uncertain But m Montreal Tramways v Leverle, the Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to 1ts mother by the neghgence of the defendants Majority of the wnters are mn favor ofthe view that an action for pre-natal inyuries should also be recognized, once that the act of the defendants considered to be Tortious 16Capacity to _be sued Minonty sno defence an law of tort Anda minors hablein the same way and extent as that of adults Buta minor is incompetent to contract, and his agreement 1s vord ab smitzo, no action can be brought against yim Under Grmunal law, a child below the age of seven years, to be Dol in capax, and cannon be held hable for any offence Between 7 to 12 years of age, a child 1s not hable unless he had attamed sufficient matunity of understanding to judge the nacure and consequences of his conduct But the law of torts docs not make any distinction on the basis of age However, ifthe tort in such as requures a special mental elemenes such as decent, malresous prosecunon, a child catmnot be held hable unless his maturity for committing that the tort can be proved in his case Tort and Contract: thas been observed that a minor is hable for tort in the same way as an adult On the other hand an agreement entered mnto by the minor is vord ab imitio, ono action cannot be brought against the minor The guesbon arises mn sich circumstances (1) cana minor besued under the law of torts although permitting such enaction May mean indirect enforcement ofa voud agreement? Or (2) wll he be exempted from habilsty sn ‘ort also, because hus act 1s also breach ef contract for which he cau'tbe sued? This position was answered in Johnson ¥. Pye, a minor obtained a loan of 300 pounds by falsely representing his age It was held that he could not be asked to repay the loan in an action for decext In Jenmangs v. Rundall, an mfant, who had hired @ mare (o nde, imjured her by overnding Held that, the minor was not liable as the action was, in substance, fora breach of contract and 1t could not be altered to an action for negligence mn tort ‘There may be certain cases of torts which may origmate in a contract, in such a cases of tort, mdependent of contract, an action Sganst @ minor can he Burnard v Haggis, Burnard, a minor, hed mare from Haggis on the express condition that 1t would not be used for ndding only and not for jumping or larking He lent ittoa frend, who ‘made to jump over high fence She was impaled on itand killed ‘The minoz was held hable for negligence, as the same was held to be independent of the contract Liability of Parents for C) en’s tort Asageneral rule, a parent ora guardian cannot be made, lable for the torts of'a child There are two exceptions to this rule @) When the childs father’s servant or agent, the father is vicariously hable ©) eben the father hnznself, by ins own neghgence, affords hus child an opportunity tocommita tort, he is hable in Beobee v. Sales the father supphed an air gun to his son, aged 15 years Even after some complaints of mischref caused by use of the gun, he allowed the gun to remain with the boy, who thereafter accidently wounded the plaintiff The father was held hable IV: Independant and Jomt ‘Tortfeasors ‘When two or more persons comin some tore against the same plaunulf, they may be either independent tortfeasor or Joint tortfeasor Independent tortfeasor When the mote persons, acting independently, but concur to produce asingle-damage, they are known 4s independent tortfeasor There 1s no concerted action on the part of independent tortfeasor For eg two motonse coming in opposite direction rashly, collide a cyclist, both the motorist are undependently hableJoint Tortfeasor. ‘Two oF more persons are said to be jomnt tortfeasor when the wrongful act, which has resulted in 2 single damage, was done by them, not independently, of one another, but m ‘futherance’ of common design ‘When two or more persons are engaged in a common pursuit and one of them in the course of and in furtherance of that commnt a tort, both of them will be considered as jomt tortfeasors and liable as such In ‘Brook v Bool, A and B entered 2's resident to search for an escape of gas Each one of them, in turn, apphed naked hight to the gas pipe, A’s apphication resulted sn an explosion Though, tis an A’. application, both A and Bwere held hable as joint tortfeasor The distinction between independent and jount tortfeasor depends upon the facts of the case, In the case of joint tortfeasor, there 1s a concurrence, not only 1n the ultimate consequences but also mental concurrence in doing the act, but in independent tortfeasor, there ts ‘merely a concurrence in the ultimate result of the wrongful act independently done In Merryweather v ‘Nixan, the pnnciples, contributions between joint tortfeasors VV: HUSBAND AND WIFE Action between spouses. Common Law, there be no action between husband and wafe for tort Neither the wife could sue her nusband nor does the husband sue his wife Where the husband, while acting as an agent or servant for some third party, commntied atort causing an myury to the wife, the wife could sue the third party Thus, where a husband while drivmg car acting as an agent of his mother injured his wife, the wife could sue her mother- sn-law, i this situation, the husband has two position (1) that of a husband, (u) that of an agent for his mother ‘The rule prohibiting actions between spouses has been abolished by the law Reforms (Husband and Wife) ‘Act, 1962 Now the husband and wife can sue each other as if they were unmarned The Act, however, places, a restrichon onan action during marniage by one spouse against another and the court has been grven a power tostay the action if it appears that no substantal benefit vall accrue to exther party from the proceedings, or the case can be more converuently chsposed off Bi d's Liability for wife’s tort: Common Law, if the wife comms a tort, the defendant could sue both the husband and wafe and the wife alone A husband was thus hable for the torts commuted after marriage VI PERSONS HAVING PARENTAL AND QUASI] INTAL AUTHORITY. Parents and quasi parent have a right to admimster punishment on a child to prevent hm from domng muschief to him or others The law 1s that a parent, teacher, or other person having lawful control or charge of cchuild or young person is allowed to udmumister pumashment on hitn Parents are presumed to delegate their authority to the teachers when a child 1s sent to school Such an authonty warrants the use of reasonable and moderate punishment only and for excessive use of force the defendant may be changed for assault, battery ev ‘VII. PERSONS HAVING JUDICIAL AND EXECUTIVE AUTHORITY Judicial Officers Protection Act, 1850, grants protection to a judicial officer for any act done or ordered tobe doneby human the discharge of hisduty He s protected even though he exceeds his urisdiction provided at that time he honestly beheved that he had jurisdiction to door order that the act complained of The protection of yuchcral prvilege applies only to judiciel proceedings as contrasted with administrative oF ministerial proceedings, or admmistratvely, the protection is not afforded to the acts done in the acts done mn the [ater capacity In State of U.P v Tulsé Ram, the postion has been explained clearly In this case, the question anses whether judicul officer, who neghgently ordered the wzongful arrest ofa person, could be able for the ‘wong of false imprisonment The appellants along with others were tned forand convicted three ofthem and 18‘acquitted two of them, an appeal the High Court upheld the conviction ofthe three persons ‘The judicial Magistrate, without versfyang the order, issues warrant against all che five persons and they were arrested by the police. handcuffed and taken to the pohice from therr village, and lodged mn the lock-up for 4 hours, and released They filed sut claiming compensation of Rs 2000 from the yudicual officer for wrongful arrest in the front of their friends, relanves on the Holi day had caused humiliation The lower appellate court provided the protection under fudteral Officers Protection Act, 1850, but made the State hable under vicarious hability But the Allahad Tigh Court, on appeal made by the State of U P held that, the State was not liable because the act done by its servant was discharge of his duties imposed by law The High Court held chat, the Judicial Officer was hable for the wrongful arrest and held that he was not exercising any yacscial function but only an execunve function while \ssuing warrant, therefore, the protection could not be available in this case 19CHAPTER TY VICARIOUS LIABILITY - SYNOPSIS; Lo 1 Prinexpal and Agent. ae 2. Parents 3 Master and Servant (a) Who 1s 2 servant? (b) Course of employment (c) Act outside the course of employment (@) Effect of express prohibition (©) The doctrine of Common Employment. Introduction Generally, a person is hable for his own wrongful acts and does not incur any habihty for the acts done by others Vicarious liability, 1s the habnhty of one person for the acts done by another person ‘The common examples of such hiabilities are, (@) Liability ofthe Principal for the tort committed by his agent, (b) Liability of partners of each other's tort, (©) Liability of the master for the tort committed by his servant When the agent commuts any tort during the course of performance as an agent, the principal 1s hable The principal is vicariously hable because of the existence of the relationship of Principal and Agent between both of them They are considered to be joint tortfeasor and ther hability 1s omtand several Insuch cases, the plaintiff has a choice either to ste the principal oragent or both The same position applies to Partners in the Partnership firm PRINCIPAL AND AGENT Qui facit per alum facrt per se—which means “he who does an act through another deemed to be done by him” When one person authonze another to doan act, and ifthe another person commits atort, the person who authorizes the acts liable vicariously ‘The authority to do the act may be expressed orimphed The two land mark cases in this situation were Lioyd v. Grace Smith & Co and State bank of India v Shyama Dev Inthe former case, Mrs Llyod owned two cottages, but not getting sufficient income from it So she approached Grace Smuth & Co, a firm of Sohestors to get consultation The managing Clerk of the firm attended her and advised her to sell the two cottages and invest the money in better way She wasasked to sign bwo documents which were supposed to be sale agreement, but the clerk got signature in a gift deed in his, name He then disposed off the property and misappropriated the money This happened without the knowledge of the Firm Tt was held that, as the agent was acting m the course of his authonity, the Principals liable for Jus tort In the latter case, popularly known as Bank Case, Mrs Shyama Dew's husband handed over some amount and cheques to his friend, who was an employee of the bank, for being deposited mn Shyama Devis's account But the friend misappropriated the amount, It was held by the Supreme Court that, the fraud was. commuted during the course of employment, but n his private capacity as fend ofthem Sothe banks not able for the tort commutted by himIn Tnlok Singh v. Kailash Bharathi, when he was out of station and caused the accrd the elder brother, so he was not held hable the younger brother took the bicycle of his elder brother lent Itwas held that, the younger brother was not the agent of The firms = » Ms Liyod. luable, as st was Glace South done during the Co for ‘course of duty consultation Managing ‘Clerk attended & musappropriate ‘money MASTER AND SERVANT Liability based on respondeat superior Commuts any tort dunng MASTER the course of employment is liable ‘The wrongful act ofthe servantis deemed to be the act ofthe masteras well Respondeat Superioris the base for vicarious labihty, which means ‘I let the principal be hable’ For the hability of the master to anise, the following essentials to be present, ‘Who isa Servant?—a person employed by another to do work master The master is not all the time hable for the contractor ‘The difference between servant and the in under the direction and control of hus tort committed by hus servant For eg independent dependent contractor 1s2s follows, 21Servant and Independent Contractor ‘Aservant—under the control and supervision of che master ‘An independent contractor 1s not subject to any such control ‘The work should be done according to the direction of the master ‘No such direction required, a3 he srtns own master Foreg your Car driver For eg Taxi dnver Rajasthan State Road Transport Corp v KNKothan, Hillyer v St Bartholomew's Hospital Morgan v Incorporated Central Council, B Govindarayuluy ML A Govindarayu Mudahar Exception the master isnot lable for the act of the servant, (1) ifthe servants not under the control of the master, (11) delegation of authority, (au) fraud, theft, mustake, negligence, (av) act outside the scope of employment, Excepuon the mascer is lable for the act of the independent contractor (1) f the master exther authonzes or ratifies the same, (u) stract habality, (an) accidents m highways, (1v) withdrawal of support and (v) breach of master’s Common Law (v) express prohibition and Dunes (v1) common employment Servant not under the contro! of the master” eis sometimes, not possible to follow the directions of the master by the servant Foreg Captain of the Ship, Surgeon in a hospital, though they are the servants of the institution, they are net © be directed regarding the nature of the work The test to ind our whether the servant 1s under ‘the control of the master or saan Hire and Fire test A person who employs another person ands his pay master, and has the power to‘ Azze’bim, 1s the master for the purpose of vicerious lhabaity ing a Seryant to anot! srs0n ‘When A lends his servant X to B, andaf X comnts tort against C, whois lable, Aor X? The answer to thus question depends upon various considerations, the main consideration being 2 8 who which of the two vey has the authoray to tell the servant not only what 1s to be done by ham but also the way saihich he his to work. In Mersey Docks & Harbour Board v Coggins & Grullichs (Liverpool) “ed ease, a harbour board owned a number of mobile cranes and had employed skilled workmen as drivers of veranes Tewas usual for the board to let out the mobile cranes, each dnven by theshulled dnwver employed by them Certain stevedores hired a crane with a driver for loadingashrp Due to the neghgence of the driver, while qoadinga sup, Xwasngured The House of Lords held that the harbour board, who Was the general and permanent employer of the driver was hable to X. thestevedores were not hable, even though at the trme of the neghgence, the driver was loading cargo for the stevedores The reason for the decision was that, although at the time of aan accident, the stevedores had immediate control over the crene-driver in so fer as they could direct inm to pick up and move a particular cargo, but that alone could not make them hable. They have no power to direct as to how the crane was to be operated. ‘The same position was held ms Smt Kundan Kaur v. Shankar Singh, Shankar Singh and Tarlok Singh, the partners ofa firm, vemporarly gave ther truck along witha Giver on pre to one Jawahar Transport for transporting certain goods from one place to another Wile transporting the goods, Jawahar Transport’s 22employ Kundan Kaur Singh was sitting beside to the dnver Because of the sesh and negligent driving of the dnver, che truck met with an accident snd Kunden Kaur Singh was died on the spot When Kundan Kuur Singh's waite filed a sunt to claim compensation the question anses whether Shankar Singh and Tazlok Singh who had given the driver and the truck on hire, be hable to Smt Kundan Kaur Singh? In thus case st was held that there was only a transfer of services and uot of control of the driver from the general employer to the hirer of the vehicle and as such Shankar Singh and Tarlok Singh were huble Casual Delegation of authority When a person even for a single transaction, authouizes another to do something for hum and the latter does wt negligently , uae former can be made hable foi the same ‘The Course of Employment. ‘The habiity of the master 1s not lumited only to the acts wich he expressly authorizes to be done but he 1s able for such torts also which are commuted by hs servant 1n the course of employment An acts deemed to be done in the course of employment, if 1118 eather, (:} a wrongful act authorized by the mastet, (u) a wrongful and unauthonzed mode of doing some actauthonized by law Soa master can be made lable as much for unauthouized acts as hes for the authorized In Nattonal Insurance Co, Kanpur v Yogendra ‘Nath, the owner of the car, authorized his servants and orderhies to look after the car and to keep the same neat and tidy, while he was out of town fora long penod of ume One of the servants wok the cat to the petrol pump for getting the tyres inflated and for checking the o1ls, ete . and neghgently knocked down and injured ovo boys, who were going onacycle In this case the master was held huble as the accident was happened during the course of employment Fraud, theft, mistake, negligent and Act outside the scope of employment: ‘When a servant, wlule in the course of employment ifhe comimuts fraud or theft or mustake or acted neghgently, the master 1s able The cases are Barwick v Enghsh Joint Stock Bank, Llyods v Grace Smith & Co, State Bank of India v. Shyama Devi For theft, the cases, the two categories are (1) goods bailed to the master, (11) goods not bailed to the master, ae Gheslure ¥, Bailey, Mors y CW Martin & Sons, for the second category, Roop Lal vy Union of Incha, popularly known as Army Jawan case In smystake of servant, che master is not hable if the servant exercise hss authority excessively or erroneously In Poland v. Parr & Sons, Bayley v Manchester, Sheffield and Lincolnshure Ry cases \i the servant 1 not cateful to the performance of his duves and lus conduct causes any loss to a third party, che muster would be huable for the same, which was held in Willams v. Jonescase For the acts committed by the servant outside ‘the course of employment, the master isnot hable In Storey v Ashton, the driver whale on kis way back to bis. employers office, was mduced by anather direction for picking up something for that employee While he goes m the new direction, he caused an accident with the plamulf ‘The master was not held liable, because the car man started a new journey on his own The case was, Heard v London General Omnibus Go Neghgent delegation of authormy by the servant The position as mentioned above has to be distinguished from a situation where a 3" party performs the act at the mnstance of the servant Jumself In other words, sf servant neghgently delegates his authonty and anstead of humsel carefully perforung.a duty himself and allows to be a negligently performed by another person, the master will be hable for such neghgence of the servant In Ricketts v. Thomas Tilling Ltd, the driver of che bus seated himself by the side of the conductor to drive the bus for the purpose of turrang the Oma busin the nght the direction for the next journey The conductor drove the busso neghgencly thatit mounted the pavement, knocked down the plamntsffand seriously injured him 1 was held that the master was hable for the zneghigence on the part of the diver in allowing the conductor to drive neghgently The other unportant cases are, Headmstress Gove .Girls High School v Mahalakshm, Baldeo Ray v. Deowatt, Indin Insurance Go, v Radhaba:, Amrucha Dei v. State of Orissa, Gyarst Devs v Sain Das, Hkaw v Samuels raEffect of Express Prohibition. Someumes the employer forbids hus servant from doing certain acts It does not necessary follow that anact done in defiance of the prohibitions outside the scope of employment In Lampus v London General Ommibus Co, case, defendant's drwver, m defiance of the express instruction not to race with, or cause ~ obstruction to, other ommbuses, tried twobstruct anrval omnibus, and thereby caused anaccident The driver had been engaged to drive and his act wasa neghgent mode of driving and it was held to be wnthun the course of employment, inspite of the express prohibition The defendant company held able ‘The other cases are Twine v Beans Express Led, Conway v George Wimpsey and Co.Ltd, Mariyam Jacob v Hematal, Prits Singh v Brinda Ram The Doctrine of Common Employment: Position m England. The rule knownas the doctrine of Common Employment was an exception tothe rule that a master 1s lable for the wrongs of his servant committed im the course of employment The rule was first applied in 1837 1n Pristley v Fowler, and developed in Hutchinston v York, New Castle and Berwick Rat] Co the doctrine was that a master was not hable for the negligent harm done by one servant to another fellow servant actmg in the course of their common employment In Pristley v. Fowlercase, the pla.nuff, who was the defendant's servant, was injured at his thigh due to breaking down of an overloaded caruiage in the charge of another servant ofthe defendant Since both the wrongdoer end the injured person were the servants of the same master, the doctrine of common employment was applicable and the master was held not hable The essentials of this doctrine, (1) the wrongdoer and the person unyured must be fellow servants, and (11) atthe time of the accident, they must have been engaged in common employment The doctrine was supposed to be based upon an mphed contract of service that the servant agreed to run nisks ‘of negligence on the part of his fellow employee Position in India: In India che matter came up for discussion mm cases In Secretary of State v. Rukminibar,case the plaintsff’s husband and employee m the G I P Ry, was killed because of che negligence ofa fellow employee Stone, the then Justice of Nagpur High Court viewed that, the rule was an unsafe guide for decision in India, and allowed the acuon The doctrine of Common Employment 1s, therefore, only of hustorical importance, both m Indiaand England, SUMMARY Petey reyCHAPTER—V VIGARIOUS LIABILITY OF THE STATE SYNOPSIS: 1, Position in England and in India. Acts of Police Officials. Negligence of Military Servants Acts in the exercise of Sovereign and non-sovereign powers Obligations imposed by law and exercise of sovereign functions aun on Kasturilal case, Sovereign immunity and Art 2lof the Constitution. Introduction Position in England At Common Law, the King could not be sued 1n tort, either for wrong actually authorized by 1t ot commtted by :ts servants, 1n the course of its employment No action could he against the head of the department or the State, as the relationshup becween them is ot as master and servant but only fellow servants So they are individually hable and could not take the defence of orders of the State or Crown Whereas an ordinary master Was hable vicariously for the wrong done by his servant, the Government was not hable for a tort commutted by :ts servant But the position has been changed after the passing of the Crown Proceedings Act, 1947 Now the Crowns liable fora tort committed by 1ts servants, just like private individual Position in India Unhke the Crown Proceedings Act, 1947 (England), we do not have any statutory provision mentioning, the habuity of the State an India Art 300 of the Constitution of India deals about this position about State hiabihty as,“ the Govt of India may sue or to be sued by the name of the State, and may subject to any provision which may be made by Act of Parliament . . ..”, Art 300 thus provides, that the Union Government and the States are juristic persons for the purpose of suit or proceedings, but the ‘circumstances under which they can be sued remains silent In Rup Ram v. The Punjab State, Rup Ram, a motor cychst, was seriously injured by the truck which was belonged to the PWD ef Punjab The plaintiff ‘brought an action against the State for injury caused by the driver's rash and neghgent driving ‘The State contented that, the truck was involved in carrying of matenals for construction of Road Bridge, which was exercised only by Sovereign Power’, as the Government alone could doit The Punyab High Court reyected thus plea and held that che State was held lable ‘The two landmark cse in relation to vicarious hability of the State was (Vidyawaci v Lokuma) State of Rayasthan v Vidyawatr, Kasturi Lal v. State of U.P and Kasturilal v. State of U.P In Vidyawati case, the plaintiff's husband ched after being knocked down by a government jeep car which was driven rashly by an employee of the State of Rayasthan Atthe time of accident, the car was being taken from the workshop to the Collector's bungalow for the Collector's use In an action against the State of Rayasthan, the State was held liable The Rayasthan High court didn't find any reason for treating the State differently from an ordinary employer and held that the state of Rajasthan was held liable On appeal, the apen 25confirmed the decision of the High Coust and endorsed the view expiessed by it Inspite of the decision of the Supreme Court, the decision was not satisfactory und certain In Kasturzla/ case, the court has agetn stated thot fthe act of the government servant was one w hich could be considered to be in delegauon of sovereign powels, the state would be exempt from the habalty, otherwise not In this case, Kastur: Lal Raha Ram, one -ofthe partneas of the jewelers at Amnstai happened to be go to Meeiut, reached there on the mudmght of 20" September, 1947 by honter Mail He had gone to Meerut if order to sel! gold and silver etc,..1n Meerut market Winle he w as pending through one of the markets w:th his belongings, he was taken into custody by three police constables on the suspicion of possessing stolen property and then he was taken to the police station On search, 1t was found that he had been carrying 103 tolas of gold and over Munds of silver Ile was kept m police lock-up and his belongings were also kepr in the custody of the pohce under the provision of ‘Criminal Procedure Code Next day he was released on bail and sometumes thereafter the silver was returned to him The gold had been keptan the police Malkhana under the change of the Head Constable Mohamed Amar The Head Constable misappropriated the gold and fled to Pukistan in October 1947 The plamfi’ drought an action against the State uf UP claming either the return of the gold or in the alternanve, compensation amounting 1o over 78 11,000" in hou thereof The State of UP held to be not hable on the grounds that, (1) the police officials were acting in discharge of statutory powers (11) the power of the police official in heeping the property m the pohce Malkhana was a sovereign. The other important cases were, Headmstress, Govt Girls High School v Makalakshm, A.H Khodwa v. State of Maharastra, Shyam Sunder v The State of Rajasthan, Indian Insurance Co Assn.Pool v Radhabat, Mohameed Shafi v Dr Vilas. Acts of Police In Pagadala Narasimham v The Commisstoner and Special Officer, Nellore Mumcipahity, a bus belonging to the plaintiff, which had been wrongly parked and caused obstruction 10 the traffic, wes removed by the traffic police with the assistance of the mumicapal employees The act of the police officers was held to be jusnfied and in discharged of soverergn functions, and therefore, they could not be held hable for the same In State of Assam v Md Nizamuddin Ahmed, the plamnbff was carrying on business 1n sale of seeds of different agisculewal products such as jute, vegetables, oilseeds, ete the business was being ca1nied on withouta hcense, hich was needed for such business [he police authontes seized the seeds from the planaff'sshop The seed pot damaged because of storage facilities and the neghgence, while they were m police custody The plantuff clamed compensation from the State for the damaged caused to the seeds while mthe custody ofpohce Tewas held chat the seizure of the seeds was in the exercise of sovereign power and the plamnuif was, therefore, not entutled to claim any damages for the same ‘Act done im exercise of sovereign Powers: In Union of India v Harbans Singh, meals were bemg caned from the cantonment, Dell for being distributed to mihtary personnel on duty ‘The truck carrying on meals belonged to the mibtary department and was being duiven by a muhtary daver In caused an aceident resulungin the death ofa person Iewas held that the act w as bemg done im exercise of sovereign power, and, therefore, the State could not be made hable for the same Act done in exercise of non-soverergn powers In Satya Wate Devts Union of India, some Aur Force personnel constituting hockey and basketball tears were cartied by an an force vehicle and due to the duiver, death was caused of the panuff’s husband ‘The Delhi Court rejected che plea taken by the Govt that such phy sical exereises were necessary to Cake the army in proper shape and trim such as act should be considered to bea sovereign act It was held thet since the 26act of earry ng teams to play matches could by performed by ¢ prvate wdiyidual, 1 was nov a sovereign function and, as such, the goveroment was able, The other important cases are, Unzon of ladia y Savita Sharma, Nandram Heeralal y UOI, VOI v Smt Jasso. UOL v Sugrabas, UOT v Bhagwati Prasad Misra. ‘Torts Committed by the servants of the State in discharge of the obligations imposed by law and in exercise of sovereign function Position in England In England after the passing of the crown Proceedings Act, 1947, 10 15 no defence for the State that the tort commuted by ats servants was in discharge of obligations umpused by law Position in India Tort commuted while performung duty in dischaige of obhgations ymposed by law has been considered to be defence in India The exemption of the State fiom hahility to pay damages for the to.tuous act of the servants, where a government servant carrying out dunes imposed by law, has been justified on the ground that 1m such cases, che Government servants purports to carry our duties unposed by she letter of the law and 3s controlled by the law and not by the government ‘Ths stacus has been discussed earher in Kasturslal & Vidyawati cases Kasturilal Gase Bypassed Although: the decision of the apex coure in this case still holds well, for practical purposes its force has been considerably reduced by a number of decisions of the Supreme Court Without expressty 1eferiing to Kascurslal or distinguishing 1t or overruling ita deviation m this case has heen made Under the arcumstances in which the State would have been exempted from habihty 1f Kasturilal had been followed, the State has been held hable The state has been hable in respect of loss o: damage either co the property or toa peison Loss of property ‘When the property 1s m possesvion of the State officrals, theie 1s decmed to be hailmentofthe property, and the state as the bailee has been held bound to either recur the property or pay compensation for the same In State of Guyarat v Memon Mohamed, the customs authoriues seized two trucks, a station wagon and goods belonging to the pla:nuff on the grounds chat the plaintiff had not paid import. duties on the sand tracks that they were used for smuggling goods, and thar some of the goods were snuggled goods The customs authorities made false representation to the magistiate stating that these to be unclaimed property and disposed of the same under the orders ofthe magistrate Subsequertly, the Revenue Tribunal set aside the said ouder of confiscation and duected the return of the property to the planutf ‘The plamonf claimed back his vehicle o. in the alternauive the value of the same emounting to about 30,000'- Itwas held by che Supreme Court that after seizure, the position of the Government was that of that the bailee ‘The order ofthe magistrate obtained on false representation did not affect the right of the owner to demand the return of the property The Government, therefore, hada duty to recurn the property, and on its failure to do the same, stad a duty to pay compensation Sovereign immuntty 1s subject to fundamental nghts In People’s Union for Democratic Rights v State of Bihar, about 600 to 700 poor peasants and landless persons had collected for a peaceful meetng Without any previous waraung by the police or provocation on the part of those collected, the Superintendent of police surounde the gathering wath the help of the policeforce and opened fire, as a result of which at least 21 persons, including children died and many more injured ‘The People’s Union of Democratic Rights filed an apphcation before the Supreme Court under Art 32 of the Constuton, claiming compensation for the victums of the firing It was held by the Supreme Court that the Stave should pay compensation for the vicuums of the fiung It was held by the SC that the State should pay compensation of Rs 20,000/- for every case of death and Rs 5,000/- for every myured person This amount was ordered to be pad within two months without prejudice to any yust claim for compensation that may be advanced by the sufferers afterwards ‘The other important cases are, Szbastran M Hongray v UO, Blum Singh v State of [K,, Ruday Shah v. State of Bihar, Saheh v GoP, Delha In these cases recognazed the habihry of the State to pay compensation, when the ght to hfe and personal luberty as guaranteed under Art 21 of the Consutution had been violated by the officials of the State ‘The other cases were SoGuyarath v Govindbhat, Smt Kaman v. So TN, Inder Singh v. $ 0 Punjab etc In Chairman, Railway Board v Cahndrima Das, a Bangaladesh: women was gang raped by railway employess in Yat: Niwas, a railway building at Howrah railway Stauon It was held by the SC that the * Right to Life"contamned n Art 21 16 available not only to every citizens of the country, but also to every person, who may not be acitzen ofthe country Even a tounst coming to this country is entitled to the protection ofhislife Fundamental rights in India are in consonance with the Rights contamed in the Universal Declaration of Human Rights adopted by United nations General Assembly It 1s unfortunate that the recommendations of the Law Commussion made long back in 1956, and the suggestions made by the SC, have not yet been given effect to it ‘The unsatisfactory state of affarrs in this regard 1s against social justice mn a welfare state Itas hoped that the Act regarding State ability wall be passed without mush further delay In the absence of such legislation, 1t wall in consonance with social justice demanded by the changed conditions and the concept of welfare State that the court will follow the recent decisions of the SC rather than Kasturilal 28CHAPTER—VI REMOTENESS OF DAMAGE Synopsis. 1 Remoteness of Damages—Problem 2 Remote and Proximate of damage—(1) the test of reasonable foresight, (2) the test of directness 3. Wagon Mound case Introduction After the commission of the tort, the question of defendant's habilty anses ‘The consequences of the wrongful act may be endless or there may be consequences of consequences For eg A—Ints B——collides with C who is carrying some explosive substances, which exploded and killed D and cause myunes to several person and nearby buildings also affected due co 1c Now the question 1s who 1s liable for these damages caused, A or Bor C? He 1s hable only for those consequences which are not too 1emae from his conduct No defendant can be made hable ad infinstum for all the consequences which follow his wrongful act Remote and Proximate damage How and where such a hne 1s to be drawn? To answer this question, we are to see whether the damage 1$100 remote a consequence of the wrongful actor not Ifitistoo remote, the defendants not hable Ifon the other hand, the act and the consequences are

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