LAW OF TORT COURSE MATERIAL KAMKUS COLLEGE OF LAW GHAZIABAD

Transcription

1 LAW OF TORT COURE MATERIAL COLLEGE OF LAW GHAZIABAD

2 UNIT - I NATURE AND DEFINITION CONTENT UNIT - II CAPACITY TO UE UNIT - III RULE OF TRICT & ABOLUTE LIABILITY UNIT - IV NUIANCE UNIT - V REMEDIE

3 Nature and Definition UNIT - I The word tort has been derived from a latin term "tortum" which means to twist. It therefore includes that conduct which is not straight or lawful but on the other hand twisted, crooked or unlawful. It is equivalent to the English term 'wrong'. Definition Tort is a wrongful act which results from the breach of a duty recognized by the law of torts for e.g. violation of a duty not to injure the reputation of someone results in the tort of defamation, violation of a duty not to interfere with the possession of land of another person results in the tort of trespass to land. Winfield Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages. Thus from the above definition following essentials emerged: Breach of duty Unliquidated damages Duty towards common people almond Tort may be defined 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. Thus it may be observed that: 1. Tort is a Civil Wrong Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from criminal wrong. In the case of a civil wrong the injured party i.e. the plaintiff institute civil proceedings against the wrong doer, the defendant. In such a case the main remedy is damages. The plaintiff is compensated by the defendant for the injury caused to him by the dependant. In the case of criminal wrong, on the other hand the criminal proceedings against the accused are brought by the tate. Moreover justice is administered by punishing the wrong doer in such a case and not by compensating the victim. 2. Tort is other than mere breach of contract or breach of trust Tort is that civil wrong which is not exclusively any other kind of civil wrong. It is only by the process of elimination that we may be able to know whether the wrong is tort or not. First we have to see whether the wrong is civil or criminal, if it is a civil wrong it has to be further seen that if it exclusively belongs to another recognized category of civil wrong like breach of contract or breach of trust. If it is found that it is neither a mere breach of contract nor any other civil wrong then we can say that the wrong is tort. 3. Tort is redressible by an action for unliquidated damages: Damage is the most important remedy for a tort. After the commission of the wrong it is generally not possible to undo the harm which has already been caused and generally it is the money compensation which may satisfy the injured party. There are other remedies which could be available when the tort is committed and the other remedies may be more effective then the remedy by way of damages for e.g. when a continuing wrong like nuisance is being committed the plaintiff may be more interested in the remedy by way of injunction to stop the continuance of 1

4 nuisance than claiming compensation from time to time if the nuisances is allowed to be continued. Damages in the case of a tort are unliquidated. It is the fact which enables is to distinguish tort from other civil wrong like breach of contract or breach of trust where the damages my be liquidated. Liquidated damages means such compensation, which has been previously determined or agreed by the parties. When the compensation has not been so determined but the determination of the same is left to the discretion of the court the damages are said to be unliquidated. The nature of the tort can be understood by distinguishing: 1. Tort and crime: The wrongs which are completely less serious are considered to be private wrong and have been labeled as civil wrongs whereas more serious wrongs have been considered to be public wrongs and are known as crimes. According to Blackstone: Wrongs are divisible into two sorts or species private wrongs and public wrongs. The former are the infringement or privation of private or civil right belonging to individuals and latter are breach and violation of public rights or duties, which affect the whole community. - ince tort is considered to be a private wrong the injured party himself has to file a suit as a plaintiff. If at any stage the injured party likes he may agree to a compromise with the tort feasor and withdrew the suit filed by him. - In the case of crime, on the other hand, even though the immediate victim is an individual the criminal wrong is considered be to a public wrong and criminal proceedings are therefore brought by the state and not by the injured party. Moreover in certain exceptional cases law does not permit a settlement in the criminal case between the wrong doer and aggrieved party. - In the case of tort the ends of justice are met by awarding compensation to the injured party. In the case of crime the wrong doer punished. The idea of awarding compensation to the injured party under civil law is to make good the loss suffered by him. The punishment under the criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing further wrongs. - ometimes the same set of facts may constitute both a tort and a crime. The civil and criminal remedies in such a case are not alternative but they are concurrent. The wrong doer may be required to pay compensation under the law of torts he may also be liable under criminal law. For example if A digs a ditch on road resulting in convenience to public at large A has committed the offence of public nuisance under section 268 IPC. If X a passer by falls into that ditch and there by gets injured A's act also becomes a tort of private nuisance as against X. A will be punished under criminal law for the offence of public nuisance he will also be liable to compensate X under torts. Tort and breach of contract distinguished: - A breach of contract results from the breach of a duty undertaken by the parties themselves. A tort on the other hand, results from the breach of such, duties which are not undertaken by the parties themselves but which are imposed by law for e.g. I have a duty not to assault or defame anyone or to commit nuisance or trespass over another person's land not because I have voluntarily undertaken any one of these duties but because the law imposes such duties on me or rather on every member of the society. The breach of these duties is a tort. - In a contract the duty is based on the privity of contract and each party owes only to the other contracting party. If A and B make a contract A's duty is towards B and B only. - Duties imposed by law under the law of torts are not towards any specific individual or individual but they are towards the world at large. However, even in a tort only that person will be entitled to sue who suffers damage by the breach of the duty. A's duty not to defame is not towards X or Z only.whosoever is defamed by A will be entitled to bring an action against him for the tort of defamation. The case of Donoghue V tevenson shows that the manufacturer of drinks owes a duty of care to every possible consumer of his product. 2

5 - Damage is the main remedy both in an action for a breach of contract as well as in action for tort. In a breach of contract the damages may be liquidated where as in an action for tort they are always unliquidated. Tort & breach of trust distinguished: In the case of breach of trust by trustee the beneficiary can claim such compensation, which depends upon the loss that the trust property has suffered. The amount of damages ascertainable before the beneficiary brings the action, the damages in the case of a breach of trust are liquidated on the other hand damages in tort are unliquidated. Tort and Quasi contract distinguished: - When a person gains some advantage or benefit to which some other person was entitled to or by such advantage another person suffers undue loss the law may compel the former to compensate the latter in respect of advantages so gained. The main distinction between a Quasi contract and a tort is that the law of Quasi contract gives a right only with respect to money and generally it is a liquidated sum of money. Law of torts apart from a right to damages grants other remedies also. Moreover a claim for damages under a law of torts is always for an unliquidated sum of money. - Further in a quasi contract the duty is always towards a particular person whereas under the law of torts the duty is towards persons generally. Is it law of tort or law of torts? The question is; 1. If it the law of tort i.e. is every wrongful act for which there is no justification or excuse to be treated as a tort. Or 2. Is it the laws of torts consisting only of a number of specific wrongs beyond which liabilities under this branch of law cannot arise? Winfield preferred the first of these alternatives and according to him it is the law of tort. According to this theory, if I injure my neighbour he can sue in tort whether the wrong happens to have particular name like assault battery, deceit, slander or whether it has no special title at all; and I shall be liable if I cannot prove lawful justification. almond, on the other hand, preferred the second alternative and for him there is law of torts. The liability under this branch of law arises only when the wrong is covered by any one or the other nominate torts. There is no general principle of liability and if the plaintiff can place his wrong in any one of the pigeonholes, each containing a labeled tort he will succeed. This theory is also known as 'Pigeon hole theory. If there is no pigeonhole in which the plaintiff case could fit in, the defendant has committed no tort. Essential of a tort: To constitute a tort it is essential that the following two conditions are satisfied. 1. There must be some act or omission on the part of the defendant and 2. The act or omission should result in legal damage. 1. Act or omission: In order to make a person liable for a tort he must have done some act which he was not expected to do or he must have omitted to do something which he was suppose to do. Either a positive wrongful act or an omission which is illegally made will make a person liable. - For e.g. A commits the act of trespass or publishes a statement defaming another person or wrongfully detains another person; he can be made liable for trespass, defamation or false imprisonment. - imilarly when there is a legal duty to do some act and a person fails to perform that duty he can be made liable for such omission. For e.g. If a corporation which maintains a public park fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruit of the poisonous tree and dies, the corporation would be liable for such omission. - Wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong there cannot be a liability for the same. For e.g. If somebody fails to help a starving man or save the drowning child it is only a moral wrong and therefore no liability can arise for that. 3

6 2. Legal Damage: - In order to be successful in an action for tort the plaintiff has to prove that there has been a legal damage caused to him. In other words, it has got to be proved that there was a wrongful act or omission causing breach of a legal duty or the violation of a legal right vested in the plaintiff. - If there has been violation of a legal right the same is actionable whether as a consequence thereof the plaintiff has suffered any loss or not. This is expressed by the maxim injuria sine damno. Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized interference howsoever trivial with the plaintiff's right Damnum means substantial harm, loss or damage in respect of money, comfort health or the like whereas when there is no violation of legal right no action can lie in a court of law even though the defendants act has caused some loss or harm or damage to the plaintiff. This is expressed by the maxim 'Damanum ine injuria Injuria since damno means violation of a legal right without causing any harm, loss or damage to the plaintiff. There are two kinds of torts. Firstly, those torts which are actionable perse i.e. actionable without the proof of any damage or loss. For e.g. Trespass to land econdly, the torts, which care actionable on the proof of some damage caused by an act. Injuria sine damno covers the first of the above stated cases. For a successful action the only thing which has to a proved is that the plaintiff's legal right has been violated. Ashby v. White is a leading case examining the maxim injuria sine damno. In this case the plaintiff succeeded in his action even though the defendant's act did not cause any damage. The plaintiff was a qualified voter at a parliamentary election but the defendant, a returning officer wrongfully refused to take plaintiff's vote No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election in spite of that it was held that the defendant was held liable. Damnum sine Injuria: It means damage, which is not coupled with an unauthorized interference with the plaintiff's lawful right. Causing of damage, however substantial to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. Gloucester Grammar chool case explains the point. There the defendant, a schoolmaster set up a rival school to that of the plaintiff's. Because of the competition the plaintiff had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiff had no remedy for the loss thus suffered by them. - A legal act though motivated by malice will not make the defendant liable. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Mental Element in tortious liability: Mental element is an essential element in most of the forms of crime. However such a generalization cannot be made about liability in tort. The position under the law of torts is as follows: Fault when relevant: In many of the branches of law of torts like assault, battery, false imprisonment, deceit malicious prosecution and conspiracy the state of mind of a person is relevant to ascertain his liability. It has to be seen whether a particular wrongful act was done intentionally or maliciously. Conduct of defendant may be compared with that of a reasonable man and he may be held liable if his conduct falls below the standard expected of a reasonable man. Liability without fault: There are certain areas where the mental element is quite irrelevant and the liability arises even without any wrongful intention or negligence. In such cases innocence of the defendant or an honest mistake on his part is no defence. Tort of conversion is an example of the same thus an auctioneer who sells goods under an authority from a customer having no title to the goods, is liable for conversion even though at the time of sale he honestly believed that the customer was the true owner. Malice in law and Malice in Fact: The term malice has been used in two different senses: In its legal sense it means a willful act done without just cause or excuse and it is known as malice in law. It 4

7 simply means a wrongful intention which is presumed in case of an unlawful act rather than a bad motive or feeling of ill will. In its narrow and popular sense it means an evil motive and the same is known as malice in fact. Motive means an ulterior reason for the conduct. It is different from intention, which relates to the wrongful act itself. The immediate intention of a person may be to commit theft; the motive of theft may be to buy food for his children. Motive is not relevant to determine a person's liability in the law of torts. A wrongful act does not become lawful merely because the motive is good. imilarly a lawful act does not become wrongful because of bad motive or malice. It was laid down in Mayor of Bradford Corporation V. Pickles (Damnum ine Injuria) uggested Questions: 1. Define Tort, and its essentials. Differentiate between Tort and crime. 2. What do you understand by maxims injuria sine damnum and damnum sine injuria? Elaborate with the help of case law. 3. What do you understand by tortuous liability? Differentiate between Tort and Contract and Tort and Breach of Trust. uggested Readings 1. Ramaswamy Iyer : Law of Tort 2. RK Bangia : Law of Tort 3. Pollock : Law of Tort 4. Winfield : Law of Tort 5. DD Basu : Law of Tort 5

8 CAPACITY TO UE Literally the word 'sue' means to institute suit. UNIT - II - Generally every person has capacity to sue or liability to be sued in tort. - However there are some variations to this rule in case of certain persons. 1. Alien Enemy English Law: An alien enemy cannot sue. - He cannot maintain an action except when duly licensed by an order in council. Indian Law: In India an alien can sue by obtaining permission of the central Govt. v/s 83 CPC. Effect of provisions of section 83 CPC may be summarised as follows:- i. An alien enemy residing in India with the permission of Govt. may sue as if he is an Indian subject. ii. An alien friend can file suit any India Court. iii. An alien enemy residing in India without the permission of Govt. of India cannot sue in Indian courts at all. (Any person residing in India which is at war with India shall be considered to be an alien enemy). 2. Foreign overeign : English Law - English Courts have no jurisdiction over an independent foreign sovereign unless he submits to the jurisdiction of the court (Daff Development Vs Kelantan Govt.) - No court can entertain an action against foreign sovereign for any thing done or omitted to be done by him in his public capacity as representative of nation of which he is the head (De Haber Vs Queen of Portugal). Indian Law: - U/s 86 CPC no ruler of sovereign state may be sued in any court otherwise competent to try the suit except with the consent of central Govt. certified in writing by secretary to that Govt. - Immunity extends also to the family of such minister or ambassador. - Provision of sec 86 CPC apply in case of Ambassador also. - Remedy against an ambassador is to move one's own Govt. to induce the Govt. of that country to take action against the ambassador and his staff. - Noted that diplomatic privilege does not import immunity from legal liability but o n l y exemption from local jurisdiction, rights of action against them are merely suspended until their recall. - Thus diplomatic agents are not immune from legal liability for any wrongful act. 6

9 3. Corporations:- - Corporation is artificial person distinct from its members. - Being an artificial person it always acts through its agents and servants and as s u c h i t s liability is always vicarious for the acts done by other persons. - Corporation will be liable for all torts (even where wrongful intention was a necessary element e.g. malicious prosecution or deceit credit) if the act is done within the course of their employment. - No doubt that a corporation is always liable if the scope of authority or employment of its agents acting on its behalf was within the power (intra vires) of the corporation. - In case of ultra vires acts the position has been explained by the case of ( C a m p b e l l v Paddington Corporation (1911, KB). Held that for the purpose of liability of the corporation there is no need to draw distinction between intra- vires and ultra-vires tort because corporation is as m u c h liable for ultra vires acts done by its representative as for intra-vires torts. - In this case the def. the metropolitan borough, in pursuance of a resolution of their council erected a stand on highway to enable the members of the council and their friends to view the funeral procession of Edward VII - Also obstructed the view of main thorough fare from the window of plaintiff house as a result of which she was prevented from making profitable contracts by charging for seats in her house for viewing the said procession. - Field a suit to claim compensation contending that the construction of such a structure also amounted to the tort of private nuisance as the same had interested with the enjoyment and use of her house resulting in special damage to her. - Contended that corporation could not be made liable as act was ultra vires. - Court rejected this plea and made the corporation liable because stand was erected in pursuance of formal resolution of borough council. 4. Minor - Minor has right to sue but he has to bring an action not in his own name but through his next friend. - In case of injury suffered by him before his birth (i.e. Prenatal) in England Congenital Disabilities (Civil Liability) Act 1976 was passed. alient features of this Act are:- i. Action is allowed if child is born alive but disabled. ii. An action is permitted even against negligent mother. Defense of c o n t r i b u t o r y negligence can be permitted to be taken. iii. An action will lie if the normal child bearing capacity of the parent has been affected even before conception. In India no such legislation is there. However in Union Carbide Corporation v/s Union of India the C referred to English Act and held that those who are able to show that their congenital default are traceable to the toxicity from the gas leak inherited on congenitally will be entitled to compensation. Capacity to be sued: - Minority is no defense under torts and minor is liable in the same manner and to the same extent as an adult for tort committed by him. - In case of contract a minor is incompetent to contract his agreement being void ab initio no action can be brought under the law of contract against him. 7

10 - Under Criminal law a child below the age of seven years cannot be held liable for any offence as he is presumed to be doli incapax. (incapable of doing wrongful act). - Between age of 7 & 12 a child is not liable unless he had attained sufficient maturity of understanding to judge the nature and consequences of his conduct. - Law of torts does not make any distinction on the basis of age. However if the tort is such as requires a special mental element such as deceit malicious prosecution a child cannot be held liable for the same unless sufficient maturity for committing that tort can be proved. Liability of parents for children's torts. - As a general rule a parent or a guardian cannot be made liable for the torts of child there are two exceptions :- i. When the child is his father's servant or agent the father is vicariously liable. ii. When father himself by his own negligence affords his child an opportunity to commit tort. Bebee V ales: The father supplied an air gun to his son aged 15 years. Even after complaints of mischief caused by the use of such gun he allowed the gun to remain with boy who thereafter accidentally wounded the plaintiff. Father was held liable. 5. Husband and Wife - At common law there could be no action between husband & wife for tort. - Neither the wife could sue her husband nor could the husband sue his wife, if the other spouse committed a tort. - Married Women's Property Act, 1882 made a change and permitted a married woman to sue her husband in tort for the protection and security of her property. - As a wife could sue only for the protection and security of her property she could not sue her husband if she caused her any personal injuries. - Thus, if the husband damaged her watch she could sue her for the same but if he negligently fractured her legs she could not bring any action for that. - Husband had no right to all for an action for any kind of harm caused by his wife to him. - The rule prohibiting action between spouses has been abolished by the law reform (Husband & Wife) Act Now the husband and wife can sue each other as if they were unmarried. Husband's liability for wife's torts: - At common law if the wife committed a tort there could be an action against both husband and wife because the wife could not be sued alone. - A husband was thus liable for the torts of his wife committed after marriage. - Under the Married Women's Property Act, 1882 the husband was also liable for pre-nuptial tort of his wife to the extent of the property he acquired through her. - The Law Reform (Married Women and tort feasors) Act 1935 has changed the position and now husband is not liable for any tort of his wife, whether committed by her before or after marriage merely because he is her husband. 6. Persons having Parental or Quasi-parental authority:- 8

11 - Parents and person in of loco parentis (in position of parents) have a right to administer punishment on a child to prevent him from doing mischief to him or others. - Law is that a parent, teacher or other person having lawful control or charge of a child or young person is allowed to administer punishment on him. - Parents are presumed to delegate their authority to the teacher when child is sent to school. - uch on authority warrant the use of reasonable and moderate punishment only and therefore if there is excessive use of force the defendant may be liable for assault, battery of false imprisonment. - Authority of a teacher to correct his students is not limited only to wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him outside the school. 7. Lunatics:- - Lunacy like infancy is not a good defense in an action for a tort except in case where intention, knowledge, malice of any other mental condition is essential to create a tortious liability and the lunatic may be found incapable of having such mental condition of intention or knowledge sufficient to impose liability upon him. 8. Insolvent:- - A bankrupt or insolvent is under a disability to sue for wrongs in respect of his property for on bankruptcy all his property vests in a trustee in bankruptcy according to English Law or the official assignee or the official receiver in Indian law. - o in other system of law the right of action for tort or enjoy to property will vest in the bustee, assignee or the receiver for the benefit of the insolvent's creditors. - But in the case of personal wrongs the right to sue is not taken away. 9. Independent and Joint tort feasors (Composite tortfeasors) - When two or more persons commit some tort against the same plaintiff, they may be either independent tortfeasors or joint tortfeasors. Independent Tortfeasors. - When the acts of two or more persons acting independently concur to produce a single damage, they are known as independent tortfeasors. - No concerted action on the part of independent tortfeasors. - There is mere similarity of design on their part although they act independently of one another. - For e.g. two motorists driving negligently and coming from the opposite direction collide and pedestrian is crushed between the two cars, these motorists are independent tortfeasors. - In the Koursk due to independent negligence of the two ships they collided with one another and as a consequence of the same, one of them ran into and sank a third vessel. - Held that they were not joint tortfeasors but only independent tortfeasors. The liability of the independent tortfeasors was not joint but only 'several' and therefore there were many causes of action as the number of tortfeasors. - Thus held that since they were severally liable, an action again one of them was no bar to an action against the other. Joint Tortfeasors :- - Two or more persons are said to be joint tortfeasors when the wrongful act which has resulted in a 9

12 single damage was done not independently of one another but in furtherance of common design. - Two or more persons are engaged in a common pursuit and one of them in the course of and in furtherance of that commits a tort both of them will be considered as jointfeasors and liable as such. - Persons having certain relationship are also treated as tortfeasors. Common examples are: Principle is agent, master and his servant and partner in a partnership firm. - If an agent servant or partner does a wrongful act in the scope of his employment Principal, master or other partners can be made liable along with agent, servant or partners as joint tort feasors. - Distinction between joint tort feasors and independent tortfeasors lies in the fact that in the case of former there is concurrence not only in the ultimate consequences but also mental consequences in doing the act in the case of latter; on the other hand, there is merely concurrence in the ultimate result of the wrongful result independently done. Composite Tortfeasors:- - Torts in India have not necessarily followed the distinction between joint and independent tortfeasors as recognised in England. - When two or more persons are responsible for a common damage (whether acting independently or jointly) they have been termed as composite tortfeasors. Joint Tortfeasors:- - Liability of joint tortfeasors is joint and several. - Plaintiff has a choice to sue anyone of them, some of or all of them, in an action. - Each one of them can be made to pay full amount of competition. - Thus for the wrong done by the agent both the principal and agent are jointly and severally liable. - Even through the actual wrongdoer is the agent, if the plaintiff so elects he may sue the principal for the whole of the damage. - As against the aggrieved party the principal cannot take the defense that the actual wrongdoer was the agent, although after making good the loss the principal may hold the agent responsible to the extent of agent's fault. - In case of joint tort feasors if judgment was obtained against any of the joint tortfeasors that resulted in release of other joint tortfeasor. There was considered to be only one cause of action in favour of the plaintiff and therefore if he had obtained judgment against any of the joint tortfeasors, it was assumed that the cause of action merged with the judgment and the plaintiff was there by barred from suing the other jointfeasors. - uccessive actions against the remaining joint tortfeasors were not permitted even though the judgment against the person sued remain wholly unsatisfied. - This common law rule being unjust was abolished by Law Reform (Married Women & Tort feasors) Act, 1935 and since then an action against one or some of the joint tortfeasors is no bar is an action against other tortfeasors, who would also have been liable for the same damage. - There is no legislation however the same rule followed in India as well. - In case of joint tortfeasors the cause of action being only one and indivisible, the release of one of them releases all the others and the cause of action against the joint tortfeasors is extinguished. - The release of the joint tortfeasors has to be distinguished from a mere covenant not to sue anyone of them. Release of one will release all others but a mere covenant not to sue anyone of them results in 10

13 the discharge of only that particular wrong doer from liability, the joint action against other still remaining alive. Judicial Officers:- - The Judicial Officers are protected from the tortuous liability by the Judicial Officers Protection Act, 1860 which places the Judicial Officers beyond the preview of the tortuous liability. However, an ultra vires action of a Judge is not protected from the tortuous liability, this preposition of law was held in ailajanand Pandey vs DC Gupta. GENERAL DEFENCE When the plaintiff brings an action against the defendant for a particular tort the defendant would be liable for the same. The defendant may however avoid his liability by taking the plea of some defence. There are some particular wrong e.g. in an action for defamation the defence of privilege, fair comment or justification are available. There are some general defences which may be taken against action for a number of wrongs. They are called General defences. The General Defences are: 1. Volenti non-fit injuria: - When a person consents to the infliction of some harm upon himself he has no remedy for that in tort. In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that and his consent serves as a good defence against him. - Consent to suffer the harm may be express or implied (In Doctor patient case consent is implied) - The consent may be implied or inferred from the conduct of the parties. For example a player in the games of cricket or football is deemed to be agreeing to any hurt, which may be likely in the normal course of the game. - For the defence of consent to be available the act causing the harm must not go beyond the limit of what has been consented. A player in a game of hockey has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti cannot be pleaded. In Hall Vs Brook lands Auto Racing Club the plaintiff was a spectator at a motorcar race being held at Brook lands on a track owned by the defendant company. During the race there was a collision between two cars one of which was thrown among the spectators thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury the danger being inherent in the sport which any spectator could foresee, the defendant was not liable. The consent must be free For the defence to be available it is necessary to show that the plaintiff consents to the act done by the defendant as free. - If the consent of the plaintiff has been obtained by fraud or under compulsion or under some mistaken impression such consent does not serve as a good defence. - Moreover the act done by the defendant must be the same for which the consent is given. Thus if you invite some person to your house you cannot sue him for trespass when he enters your premises. - When a person is incapable of giving his consent because of his insanity or minority consent of such person's parent or guardian is sufficient. Consent obtained by Fraud Consent obtained by fraud is not real and that does not serve as a good defence. In the Irish case of Hegarty V. hine it has however been held that mere concealment of facts may not be such a fraud as to vitiate consent. 11

14 There the plaintiff paramour had infected her with venereal disease and the therefore brought an action for assault. The action failed partly on the ground that mere non-disclosure of the disease by the plaintiff was such a fraud as to vitiate consent and partly on the ground of ex turpi causa non oritur actio (It means that from an immoral cause no action arises). Consent obtained under compulsion - Consent 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 undertake some risky work which if he had a free choice he would not have undertaken. - The situation generally arises in master-servant relationship. The servant may sometimes be faced with the situation of either accepting the risky work or losing the job. Mere knowledge does not imply assent: For the maxim volenti non-fit injuries to apply two points have to be proved - (i) (ii) The plaintiff knew that the risk is there. He knowing the same agreed to suffer the harm. In Bowater V. Rowley Regis Corporation the plaintiff, a car driver was asked by the defendant's foreman to drive a horse which to the knowledge of both was liable to bolt. The plaintiff protested but alternately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held the maxim volenti non-fit injuria did not apply and the plaintiff was entitled to recover. If a workman ignores employer's instruction and contravenes statutory provisions thereby causing damage to himself he can certainly be met with the defence of volenti non-fit injuria. Limitations on the scope of doctrine The scope of application of the doctrine volenti non-fit injuria has been curtailed in rescue cases. Rescue Cases - Rescue cases form an exception to the application of the doctrine of 'volenti non fit injuria'. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant he cannot be met with the defence of volenti non fit injuria. - Haynes V. Harwood is an important authority on this point. In that case defendant's servant left a two-horse van unattended in a street. A boy threw a stone on the horses and they bolted causing grave danger to women and children on the road. A police constable, who was on duty inside a nearby police station, on seeing the same, managed to stop the horses but in doing so he himself suffered serious personal injuries. It being a rescue-case, the defence of volenti non-fit injuria was not accepted and the defendants were held liable. - It was held that the doctrine of the assumption of risk does not apply where the plaintiff has under an exigency caused by the defendants wrongful misconduct consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death whether the person endangered is one to whom he owes a duty of protection, as a member of his family or is a mere stranger to whom he owes no such special duty. - The same principle will apply when somebody by his negligence puts himself in danger rather than any third person. If, for instance A by his own wrongful act creates a situation which endangers A himself and the circumstances are such that he can expect that somebody else will come to his rescue A will be liable to the rescuer. - The rule in Haynes V. Harwood applies in cases of rescue of property also. 12

15 2. Plaintiff the wrongdoer Under the law of contract one of the principles is that no court will aid a person who founds his cause of action upon an immoral or an illegal act. Whereas in case of tort the principle seems to be that the mere fact that the plaintiff was a wrongdoer does not disentitle him from recovering from the defendant for latter's wrongful act. The plaintiff may have to answer for his wrongful act but does not forfeit his right of action for the harm suffered. When the plaintiff himself is a wrongdoer he is not disabled from recovering in tort unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction. Thus it has to be seen as to what is the connection between the plaintiff wrongful act and the harm suffered by him. If his own act is the determining cause of the harm suffered by him he has no cause of action. In Bird Vs Holbrook the plaintiff a trespasser over the defendant land was entitled to claim compensation for injury caused by spring gun set by the defendant without notice in his garden. 3. Inevitable Accident Accident means an unexpected injury and if the same could not have been foreseen and avoided inspite of reasonable care on the part of the defendant it is inevitable accident. It does not mean absolutely inevitable but it means not avoidable by any such precautions as a reasonable man doing such an act then and there could be expected to take. In tanley V. Powell the plaintiff and the defendant who were members of a shooting party went for pheasant shooting. The defendant fired at a pheasant but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the injury was accidental and defendant was not liable. It may be noted that the defence of inevitable accident is available when the event is unforeseeable and consequence unavoidable inspite of reasonable precaution. Even if the event is like heavy rain and flood but if the same can be anticipated and guarded against and the consequence can be avoided by reasonable precautions the defence of inevitable accident cannot be pleaded in such a case. 4. Act of God: Act of God is a kind of inevitable accident with the difference that in the case of Act of God the resulting loss arises out of the working of natural forces like exceptionally heavy rainfall, storms, tempests, tides and volcanic eruptions. It has been explained in Halsbury's Law of England as under: "An Act of God in the legal sense may be defined as an extraordinary occurrence of circumstance which could not have been foreseen and which could not have been guarded against or an accident due to a natural causes directly and exclusively without human intervention and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it." Two important essentials are needed for this defence:- (i) There must be working of natural forces In Ramalinga Vs Narayana Reddiar it has been held that the criminal activities of the unruly mob which robbed the goods transported in the defendant's lorry cannot be considered to be an act of God and the defendant is liable for the loss of those goods as a common carrier. (ii) Occurrence must be extra ordinary In Kallulal V Hemchand the wall of a building collapsed on a day when there was a rainfall of 2.66 inches. That resulted in the death of respondent's children. The Madhya Pradesh 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 rainy season was not something extraordinary but only such as ought to have been 13

16 anticipated and guarded against. The appellant was therefore held liable. 5. Private Defence The law permits use of reasonable force to protect one's person or property. If the defendant uses the force which is necessary for self-defence he will not be liable for the harm caused thereby. There should be imminent threat to the personal safety or property. It is also necessary that such force as is absolutely necessary to repel the invasion should be used. Thus if A strikes B, B cannot justify drawing his sword and cutting off his hand. For the protection of property also the law permits taking of such measures as may be reasonably necessary for the purpose. Fixing of broken pieces of glasses or spikes on a wall or keeping a fierce dog can be justified but not the fixing of spring guns. 6. Mistake Mistake whether of fact or of law is generally no defence in an action for tort. When a person willfully interferes with the rights of another person it is no defence to say that he honestly believed that there was some justification for the same when infact no such justification existed. Entering the land of thinking that to be one's own is trespass. To this rule there are some exceptions when the defendant may be able to avoid his liability by showing that he acted under an honest but mistaken belief. For e.g. for the wrong of malicious prosecution it is necessary that the defendant had acted maliciously and without reasonable cause and if the prosecution of an innocent man is mistaken it is not actionable. 7. Necessity An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. Necessity Vs Private Defence In necessity there is an infliction of harm on an innocent person whereas in private defence harm is caused to the plaintiff who himself is wrongdoer. Necessity Vs Inevitable accident In necessity the harm is an intended one whereas in inevitable accident the harm is caused inspite of the best effort to avoid it. Throwing goods overboard a ship to lighten it for saving the ship or persons on board the ship or pulling down a house to stop further spread of fire are its common examples. imilarly pulling out a drowning person from water or surgeon to perform an operation is not actionable. If however the interference is not reasonably necessary the defendant will be liable. In Carter V Thomas the defendant who entered the plaintiff's premises in good faith to extinguish fire at which the foremen had already been working was held liable for trespass. 8. tatutory Authority The damage resulting from an act which the legislature authorizes or directs to be done is not actionable even though it would otherwise be a tort. When an act is done under the authority of an act it is complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute. 14

17 Immunity under statutory authority is not only for that harm which is obvious but also for that harm which is incidental to the exercise of such authority. In Vaughan V Taff Valde Rail Co. sparks from an engine of the respondent's railway company which had been authorized to run the railway set fire to the applicant's woods on the adjoining land. It was held that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than what the statute had authorized them to do they were not liable. It is necessary that the act authorized by legislature must be done carefully and therefore an action does lie for doing that which the legislature had authorized if it be done negligently. The statute may give absolute or conditional authority for the doing of an act. In the former case even though nuisance or some other harm necessarily results there is no liability for the same. When the authority given by the statute is conditional, it means that the act authorized can be done provided the same is possible without causing nuisance or some other harm. In Metropolitan Asylum District V. Hill the appellant hospital authority erected a small pox hospital in a residential area. It was held to be a nuisance and the appellants were issued an injunction to remove the hospital. The statutory authority in this case was constructed to be conditional in so far as they were considered to be authorized to set of hospital if that could be done without creating a nuisance. Act authorized must be done carefully and therefore an action lie for doing that which the legislature had authorized if it be done negligently. In mith V London and outh Western Railway Co. the servant of Railway co. negligently left trimmings of grass and hedges near railway line sparks from an engine set the material on fire and cottage adjacent to line was burnt since it was a case of negligence on the part of railway Co. they were held liable. uggested Questions. 1. Who can sue under law of Tort? Discuss about Minor capacity to sue and be sued. 2. What are the defences available to the defendant under law of torts? Discuss about Volenti Non fit Injuria, citing case law. uggested Readings 1. Ramaswamy Iyer : Law of Tort 2. RK Bangia : Law of Tort 3. Pollock : Law of Tort 4. Winfield : Law of Tort 5. DD Basu : Law of Tort 15

18 UNIT - III Rules of trict & Absolute Liability In this chapter the following two rules are being discussed: 1. The rule of trict liability and 2. The rule of Absolute liability Under each one of the rules the liability of the defendant is no fault liability. In other words such liability can arise even it the defendant is not at fault i.e. he may not be negligent or he does not cause the harm intentionally or even if he has taken care to see that his act does not cause any harm. The rule of trict liability: The rule of trict liability was formulated in 1868 by then House of Lords in Rylands V. Fletcher. - This is also known as the rule in Rylands V. Fletcher which laid down the rule recognizing no fault liability. - Under this rule the defendant is liable for the harm even though the same is unintentional and also without any negligence on the part of the defendant. - In this case the defendant got a reservoir constructed through independent contractors over his land for providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir it bursts through the shafts and flooded the plaintiff's coalmines on the adjoining land. The defendants did not know of the shafts and had not been negligent although the independent contractors had been. Even through the defendants had not been negligent they were held liable on the basis of rule laid down in this case. - According to the rule if a person brings on his land and keeps there any dangerous things i.e. a thing which is likely to do a mischief if it escapes, he will be prima-facie answerable for the damages caused by its escape even though he had not been negligent in keeping it there. - For the application of the rule, therefore the following there essentials should be there :- 1. ome dangerous thing brought or collected by a person on his land. 2. Escape of the thing collected. 3. Non-natural use of land. 1. Dangerous thing The thing collected should be capable of doing mischief by escape. The rule has been applied to water, gas, electricity poisonous trees, sewages, explosives noxious fumes and rusty worse. 2. Escape 16

19 For the rule in Rylands v. Fletcher to apply it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. Thus if there is projection of the branches of poisonous trees on the neighbor's land, this amounts to an escape and if the cattle lawfully there on the neighbor's land are poisoned by eating the leaves of the same, the defendant will be liable under the rule. But if the plaintiff's horse intrudes over the boundary and dies by nibbling the leaves of a poisonous tree there the defendant cannot be liable because there is no escape of the vegetation in this case. 3. Non-natural use of land Water collected in the reservoir in such a huge quantity in Rylands V. Fletcher was held to be non-natural use of land. Keeping water for ordinary domestic purposes is natural use. For the use to be non-natural "it must be some special use brining with it increased dangers to others and must not merely the ordinary use of land". For e.g. in Noble V. Harrison it has been held trees (non-poisonous) on one's land are not non natural use of land and if the branches of trees which over hung on the highway suddenly broke and fell plaintiff's vehicle. The defendant could not be made liable because growing tree is not non natural use of land. However, growing of a poisonous tree is non-natural use of land and if the animal on the neighbor's land nibbles the leaves of such trees and dies the defendant will be liable under the rule. It is no defence to the application of this rule that the act causing damage had been done by an independent contractor. In Rylands V. Fletcher itself the defendant were held liable even though they had got the job done from independent contractors. Exception to the rule: 1. Plaintiff's own default: Damage caused by escape due to the plaintiff's own default was considered to be a good defence in Rylands V. Fletcher itself. If the plaintiff suffers damage by his own intrusion into the defendant's property he cannot complain for the damage so caused. - In Ponting V. Noakes the plaintiff horse intruded into the defendant's land and died after having nibbled the leaves of a poisonous tree there. The defendant was held out liable because damage would not have occurred but for the horse's own intrusion to the defendant's land. 2. Act of God: If the escape has been unforeseen and because of supernatural forces without any human intervention, the defence of Act of God can be pleaded. - If the embankments of ornamental lakes give way due to extraordinary rainfall the person so collecting the water would not be liable under the rule (Nichols V. Marsh Land). 3. Consent of the plaintiff: In case of volenti non-fit injuria i.e. where the plaintiff has consented to the accumulation of the dangerous thing on the defendant's land the liability under the rule does not arise. - uch consent is implied where the source of danger is for the common benefit of both plaintiff and the defendant. - When water has been collected for the common benefit of the plaintiff the defendant will not be liable for the escape of such water unless there is negligence on his part. 4. Act of third party If the harm has been caused due to the act of a stranger who is neither defendant's servant nor the defendant has any control over him the defendant will not be liable under this rule. - Thus in Box V. Jubb the overflow from the defendant's reservoir was caused by the blocking of a train 17