Q. Define Tort and Law of Tort. Discuss its nature. What are its various ingredients? What conditions must be satisfied before a liability in Tort arises? "A tort is a civil injury but all civil injuries are not Torts". Explain. Distinguish between Tort and Crime. How many kinds of Torts are there?

The word tort has been derived from the latin word "tortum" which means to twist. In general, it means conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it be free of anti-social elements and that an individual should have freedom to exercise his rights without being restricted by others. Further, if there is a transgression of any right, there must be a way to compensate or to restore the right. This is essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from two sources - contractual obligations and inherent rights that are available to all the citizens against every other citizen, aka rights in rem. While the violation of contractual right has clear remedy that arises from the contract itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music loudly, then he violates one's right to be noise free. He is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages.

There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with a definition that can accommodate all the cases. However, the following are some definitions from the experts -

Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated damages and which is not exclusively a breach of contract or breach of trust or other equitable obligation.

Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in general and its breach is redressable by an action for unliquidated damages.

Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.

Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who has been injured due to a tortious act.

From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, not all civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs but are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust.

Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect the victim but also to the society as a whole to a great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with torts.

The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a contract, it may fall under tort. The damages are unliquidated and are decided only by the common sense of the courts. The following differences between Tort and Crime and Tort and Breach of Contract, shows the true nature of Tort.

Distinction between Tort and Breach of Contract

Tort Breach of Contract

Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract. A breach of contract occurs due to a breach of a duty (right in persona) agreed upon by the parties themselves.

Victim is compensated for unliquidated damages as per the judgment of the judges. Thus, damages are always unliquidated.

Victim is compensated as per the terms of the contract and damages are usually liquidated.

Duty is fixed by the law of the land and is towards all the persons. Duty towards each other is affixed by the contract agreed to by the parties.

Doctrine of privity of contract does not apply because there is no contract between the parties. This was held in the case of Donaghue vs Stevenson 1932. Only the parties within the privity of contract can initiate the suit.

Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort.

When a contract is void, there is no question of compensation. For example, a contract with a minor is void ab initio and so a minor cannot be held liable for anything.

Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR 1986 - the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Justice is met only by compensating the victim for actual loss.

In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there was no contract between the purchaser and the manufacturer.

The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in the pool. The pool design was defective and the person's head hit the bottom. He was paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the contract. It was held that he could sue even for the breach of contract as he was the beneficiary of the contract. He could also sue in torts where plea of stranger to contract is irrelevant. The hotel was held liable for compensation even though there was no contract between the person and the hotel and the hotel was made to pay 50Lacs as exemplary damages.

Distinction between Tort and Crime

Tort Crime

Tort occurs when the right available to all the persons in general (right in rem) is violated without the existence of any contract. Tort occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society.

Act is comparatively less serious and affects only the person. Act is comparatively more serious and affects the person as well as the society.

Intention is usually irrelevant. Intention is the most important element in establishing criminal liability. A crime cannot happen without Mens Rea.

It is a private wrong. It is a public wrong.

Since it is a private wrong the wronged individual must file a suit himself for damages. Since it is a public wrong, the suit is filed by the govt.

The suit is for damages. The suit is for punishment.

Compromise is possible between the parties. For example, a person who has been defamed, can compromise with the defamer for a certain sum of money. There is no compromise for the punishment. For example, if a person is guilty of murder, he cannot pay money and reduce his sentence.

Compounding is possible. Compounding is generally not possible.

Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs State of J K AIR 1986 - the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Justice is met by punishing the aggressor by prison or fine. In some specific cases as given in IPC compensation may be given to the victim.

Tortious acts are usually not criminal acts. Several criminal acts such as assault and battery are also grounds for tortious suit.

Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.)

There are three essential elements for an act to be liable under Tort.

1. Wrongful act or omission - There must be some act or omission of a duty on the part of the defendant. For a tort to happen, the person must have first either done something that he was not expected to do or omitted to do something that he was supposed to do.

Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and killed several people. MCD was held liable for its omission.

2. Duty imposed by law - The act or omission of an action must be required by law or the duty must be imposed by law. This means that if an act that is prohibited by law causes harm, it is liable under tort. Similarly, if the omission of an act that is required by law, causes harm, then it is liable under tort. For example, law requires that the driver of a vehicle must drive carefully and if driving without care, a pedestrian is hit, the omission of the act of driving carefuly is liable under tort. However, if the worshipers stop going to a temple and thereby cause the priest to lose money, this action is not liable under tort because going to temple is not an act that is required by law. Such duties that are required by law are usually towards all the people in general.

Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal duty towards the consumers to ensure that noxious substances are not included in the drink.

3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal right vested in the plaintiff. This means that the act or omission must cause a damage that is recognized by law as wrongful. For example, a person has a legal right to enjoy his property and if someone throws trash in it, this is a violation of his legal right and is liable under tort. However, it is possible that a legal right is violated without causing any physical or real damage. This is explained in the maxim - Injuria Sine Damno.

Injuria Sine Damno -

Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting. Even though there was no damage, the defendant was held liable.

Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was release later, he was awarded 50,000RS as exemplary damages by SC.

On the other hand, it is possible that a person suffers a huge loss or damage but none of his legal rights are violated. This is called Damnum sine Injuria. In such cases, there is no tortious act.

Damnum Sine Injuria -

Glaucester Grammar School's case 1410 - Defendant opened a rival grammar school in front of an existing one thereby causing the fees of the existing one to be reduced from 40pence to 12 pence. He was not held liable as he did not violate any legal right of the plaintiff.

Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent injunction against the cinema house to restrain them from showing the movie Jai Santoshi Maa. It was contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not

recognized as a legal wrong. Since there was no violation of a legal right, an injunction was not granted.

Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water which diminished the water supply of the plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff.

Harm due to negligence - A person is not liable in tort even if he causes harm due to negligence but does not cause injury. In Dickson vs Reuter's Telegram Co 1877, the defendant company delivered a telegram that was not meant for the plaintiff to the plaintiff. Based on the telegram, the plaintiff supplied some order which was not accepted by the sender of the telegram. Plaintiff suffered heavy losses and sued the defendant company. It was held that the company owed a contractual duty only to the sender of the telegram and not to the receiver. Hence they were not liable.

Harm due to malice - If a person has not caused an injury even if he does an act with malice, he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk a shaft in their own land which caused the water to become discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it with malice, he had not violated any right of the plaintiff and hence was not liable.

4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only upon a permission from the King. There were only certain predefined torts for which the king's permission could be obtained. Thus, it was necessary to have legal remedy for that particular violation before an action for damages could be started.

However, now, such a requirement is not there. It has been accepted that there can be many kinds of torts and if a violation of a legal right has happened, the person is enttitled to sue.

Kinds of Torts

As mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is therefore ever evolving. New ways in which the rights are violated come to light everyday. However, they can be classified on the basis of way of incurrment of liability into the following three categories -

1. Intentional - Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this category. For example, torts such as assault, battery, trespass to land, false imprisonment are intentional torts.

2. Negligent Conduct - Wrongful acts that are done without any intention but because of not taking proper care that is required by law fall into this category.

3. Strict Liability - Acts that are neither done intentionally nor do involve any negligence, but still cause an injury to other are liable under the concept of strict liability as propounded in Rylands vs Fletcher. In strict liability cases, the defendant is liable even if it acted reasonably. There are 3 types of strict liability cases:

1- keeping wild animals

2- dangerous, legal activities such as blasting roads

3- the manufacture of products (products liability)

Torts can also be classified according to the type of damage -

1. Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with intention or even with negligence.

2. Abstract Torts - Causing damage to mind or reputation such as defamation.

3. Tort involving property - For example, Trespass to land.

4. Tort involving legal right - For example, false imprisonment.

5. Nuisance - Causing unreasonable restriction towards exercise of one's legal right.

Q. Describe general exceptions regarding Torts that are not actionable / General Defences for Torts.

Even when a plaintiff provides proof for the existance of all the essential elements of a tort, it is possible in some cases for the defendant to take certain defences which can remove his liability, These defences are nothing but specific situations or circumstances in which a defendant is given a waiver for his tortious action. These are as follows -

1. Volenti Non fit Injuria

When a person consents for infliction of an harm upon himself, he has no remedy for that in Tort. That means, if a person has consented to do something or has given permission to another to do certain thing, and if he is injured because of that, he cannot claim damages. For example, A purchases tickets for a Car race and while watching the race, an collision of cars happens and the person is injured. Here, by agreeing to watching the race, which is a risky sport,it is assumed that he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim compensation for the injury.

Such a consent may be implied or express. For example, a person practicing the sport of Fencing with another, impliedly consents to the injury that might happen while playing.

In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show, during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the course. He was seriously injured. It was held that the defendants had taken proper care in closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable.

However, the action causing harm must not go beyond the limit of what has been consented. For example, in a sport of fencing, a person consents to an injruy that happens while playing by the rules. If he is injured due to an action that violates the rules, he can claim compensation because he never consented to an injury while playing without rules.

In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her breast. But the hospital removed her uterus as well without any genuine reason. It was held that removing of her uterus exceed beyond what she had consented for.

Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was compelled by the master to do a certain task despite his protests, and if he is injured while doing it, the master cannot take the defence of volenti non fit injuria because the consent was not free.

Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has consented -

1. Rescue Conditions - When the plaintiff sufferes injury while saving someone. For example, A's horse is out of control and is galloping towards a busy street. B realizes that if the horse

reaches the street it will hurt many people and so he bravely goes and control's the horse. He is injured in doing so and sue's A. Here A cannot take the defence that B did that act upon his own consent. It is considered as a just action in public interest and the society should reward it instead of preventing him from getting compensation.

2. Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defence. For example, even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can claim compensation because the contract is unfair to the consumers.

2. Plaintiff the wrongdoer

A person cannot take advantage of his own wrong. This principle has been in use since a long time as it is just and equitable. For example, a person trespassing one another's property is injured due to darkness. He cannot claim compensation because he was injured due to an action which was wrong on his part. However, this defence exists only if the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury happens because of a wrongful act of the defendant even if the plaintiff was doing a wrongful but unrelated act. For example, in Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant's property and he was hurt due to a springgun. The defendant had put spring guns without any notice and was thus held liable.

3. Inevitable Accident

Accident means an unexpected occurance of something that could not have been predicted or prevented. In such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is injured because of it. For example, in Stanley vs Powell 1891, the plaintiff and the defendant were members of a shooting party. The defendant shot a bird but the bulled ricocheted off a tree and hit the plaintiff. The defendant was not held liable because it was an accident and the defendant did not intent it and could neither have prevented it.

However, the defence of Inevitable Accident is not a license to negligence. For example, A has hired B's car. While driving, one of the tires bursts and causes accident injuring A. Here, if the tires were worn out and were in bad condition, it would be negligence of B and he would be held liable for A's injuries.

4. Act of God

An act of God in a legal sense is an extraordinary occurance of circumstance which could not have been predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a natural disaster such an an earthquake or flood. Thus, it is unreasonable to expect a person to be liable for damages caused by such acts of God. There are two essential condtions for this defence - the event must be due to a natural cause and it must be extraordinary or some thing that could not have been anticipated or expected. For example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be termed an act of god because protection for such expected conditions should have been taken. But if a building falls due to a massive earhquake and injures and kills people, this defence can be used.

In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal activities of an unruly mob is not an act of God.

5. Private Defence

As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defence. Thus, law permits the use of reasonable and necessary force in preventing harm to human body or property and injuries caused by the use of such force are not actionable. However, the force must be reasonable and not excessive. In Bird vs Hollbrook 1892, the defendant used spring guns in his property without notice. It was held that he used excessive force and so was liable for plaintiff's injury even though the plaintiff was trespassing on his property.

6. Mistake

Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the mistaken belief that he is trespassing on your property, will not be defensible. However, in certain cases, it could be a valid defence. For example, in the case of malicious prosecution, it is necessary to prove that the defendant acted maliciously and without a reasonable cause. If the prosecution was done only by mistake, it is not actionable.

Further, honest belief in the truth of a statement is a defence against an action for deceit.

7. Necessity

If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over a small boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of people is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be a good defence to an action for battery.

8. Statutory Authority

An act that is approved by the legislature or is done upon the direction of the legislature is excused from tortious liability even though in a normal circumstances, it would have been a tort. When an act is done under the authority of an Act, it is a complete defence and the injured party has no remedy except that is prescribed by the statute.

In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's woods that existed in his land adjoining the railway track. It was held that since the company was authorized to run the railway and since the company had taken proper care in running the railway, it was not liable for the damage.

Q. What are the torts relating to the absolute liability? What are its kinds? What is Ryland vs Fletcher rule? What are its exceptions? Is this rule applied in India in present circumstances? If not, why?

In certain situations, a person is held liable for the damages caused by his actions even when the actions are done without any ill intention or negligence on account of equity and justice. For example, if a person keeps a lion for a pet and despite of all the precautions the lion escapes the cage and kills someone. In this case, the owner of the lion will be liable even though he had no ill intention to cause death and had taken all the precautions to keep the lion in the cage. This seems just because the damage happened only because he brought a dangerous thing on his property. He was also aware of the consequences if the lion escapes the cage and so he should be made liable if it escapes and causes damage.

This principle of holding a person liable for his actions without any kind of wrong doing on his part is called the principle of absolute liability or no fault liability. This principle was first upheld in the case of Ryland vs Fletcher by the privy council in 1868. However, later on some exceptions to this were also established due to which "strict liability" is considered a more appropriate name for this principle. In this case, the defendant hired contractors to build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some old disused shafts under the site of the reservoir that lead to plaintiff's mine on the adjoining land. When water was filled in the reservoir, the water flooded the mine through the shafts. The plaintiff sued the defendant. The defendant pleaded that there was no intention and since he did not know about the shafts, he was not negligent even though the contractors were. Even so, he was held liable. J Blackburn observed that when a person, for his own purposes, brings to his property anything that is likely to cause a mischief if it escapes, must keep it at his peril and if it escapes and causes damage, he must be held liable. He can take the defence that the thing escaped

due to an act of the plaintiff or due to vis major (act of God) but since nothing of that sort happened here, then it is unnecessary to inquire what excuse would be sufficient.

To this rule promulgated by J Blackburn, another requirement was added by the Court of Exchequer Chamber, that the use must be a non-natural use of land as was the case in Ryland vs Fletcher itself. For example, growing of regular trees is a natural use but growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild beasts is not. Thus, the conditions when this rule will apply are -

1. The thing kept must be dangerous - The thing kept on the land must be as such as is likely to cause mischief if it escapes. For example, storing gas or explosives or wild beasts are all likely to cause damage if they escape.

2. The thing must escape - If the thing is within the boundary of the defendant's land, he is not liable. The thing must escape out of his land for him to be liable. In Crowhurst vs Amersham Burial Board 1878, branches of a poisonous tree were hanging outside the land of the defendant. Plaintiff's cattle ate them and died. Defendant was held liable because protrusion of branches out side his property were considered as escaping from his property. However, in Ponting vs Noakes 1994, when the plaintiff's horse intruded over his boundary and ate poisonous leaves of the defendant's tree, he was not held liable because there was no escape.

3. The thing must be a non natural use of land - The use must not be an ordinary use of the land. There must be a special purpose because of which it brings additional danger to other. In Noble vs Harrison 1926, a branch of a tree growing on defendant's land broke and fell on plaintiff's vehicle. It was held that growing regular trees is not a non natural use of land and the branch fell because of an inherent problem and not because of any negligence of the defendant and so he was not liable.

As mentioned before the following are exceptions or defenses against this rule -

1. Plaintiff's own default - If the thing escapes due to plaintiff's fault the defendant cannot be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown Tramway Co 1902. the plaintiff's submarine cable transmissions were disturbed by escape of electric current from defendant's tramway. It was held that since the current was not causing any problem to regular users and it was causing problem to the cables only because they were too sensitive and so the defendant cannot be held liable. One cannot increase his neighbor's liabilities by putting his land to special uses.

2. Act of God - In circumstances where no human has control over, no one can be held liable. In Nichols vs Marsland 1876, the defendant created artificial lakes to store rainwater. In that particular year, there were exceptionally heavy rains, which caused the embankments to break

causing floods, which broke defendant's bridges. It was held that since there was no negligence on the part of the defendant and the flood happened only because of rains so heavy that nobody could imagine, the defendant was not liable.

3. Consent of the plaintiff - If the plaintiff has consented for the accumulation of the dangerous thing, he cannot hold the defendant liable. This is also the case when an activity is done for mutual benefit. For example, A lives on the ground floor and the defendant lives on the floor above A's. Now, a water tank is built by the defendant to supply water for both of them. The defendant will not be held liable for leakage of water fro m the tank.

4. Act of third party - When a third party, who is not an employee or a servant or a contractor of the defendant is responsible for causing the dangerous thing to escape, the defendant will not be held liable for the damage. In Box vs Jubb 1879, the overflow from the defendant's reservoir was caused by the blocking of a drain by some strangers. The defendant was held not liable. However, if such act can be foreseen, this defence cannot be pleaded because the defendant must take precautions to prevent such an act. In M.P. Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live electric wire lying on the road. SC applied the rule of strict liability and held that the defence of act of stranger is not applicable because snapping of wire can be anticipated and the Electricity Board should have cut off the current as soon as the wire snapped.

5. Statutory Authority - When an act is approved by the legislature or is done on the direction of the legislature, it is a valid defence for an action of tort even when the rules of Ryland vs Fletcher apply. However, it is not application when there is negligence.

Position in India

The principle of strict liability is applicable in India as well. For example, Motor Vehicles Act 1938, recognizes no fault liability. Similarly, the liability of a public carrier such as railways has also been increased from that of a bailee to an insurer. However, there has been a deviation in the scope of this rule. Depending on the situation, its scope has been increased as well as decreased by the courts. For example, in Madras Railway Co. vs Zamindar 1974, the water collected in a pond for agricultural purposes escaped and caused damage to the railway track and bridges. Here, the application of this rule was restricted because the collection of water in such a way is a necessity in Indian conditions and so it is a natural use of the land. This mechanism to store rainwater is used throughout the country and since ages. Therefore, the defendant was not held liable.

A landmark case in this respect was the case of M C Mehta vs Union of India AIR 1987. In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused damage to several people and even killed one advocate. In this case, the rule of Ryland vs

Fletcher was applied. However, the company pleaded sabotage as a defence. SC went one step further and promulgated the rule of Absolute Liability. It observed that the rule of Ryland vs Fletcher was a century old and was not sufficient to decide cases as science has advanced a lot in these year. If British laws haven't progressed, Indian courts are not bound to follow their law and can evolve the laws as per the requirements of the society. It held that an enterprise that engages in dangerous substances has an absolute responsibility to ensure the safety of the common public. It is only the company that can know the consequences of its activities and so it must take all the steps to prevent any accident. If, even after all precautions, accident happens, the company still should be made absolutely liable for the damages. The reason being that the company has a social obligation to compensate the people who suffered from its activity. SC also laid down that the measure of compensation should depend on the magnitude and capacity of the enterprise so that it can have a deterrent effect.

Q. How can liability in Torts be discharged?

The following are the modes through which liability in Torts can be discharged -

1. Death of a party - "Actio personalis maritur cum persona" means Personal actions of a person die with the person. But not always. In several cases, the cause of action remains valid even after death of wrongdoer. For example, Workers' Compensation Act, Fatal Accidents Act, etc.

2. Acquiescence - If the party whose right is being violated does not protest and allows the transgression to happen without any restriction.

3. Waiver - If the plaintiff starts proceedings for one remedy for example, Civil suit, he cannot file another suit under another remedy such as Tortios Suit for the same cause.

4. Release - If the plaintiff voluntarily releases the wrongdoer from liability. In England, consideration is must. In India, no consideration is required.

5. Accord and Satisfaction - If the parties compromise and settle the dispute.

6. Judgement Recovered - "res judicata" - upon the damages awarded by the court.

7. Statute of limitation - Suit must be filed within the time frame provided by statutes of limitations.

Q. Explain various Judicial remedies that are available to a plaintiff in an action of tort. Are there any extra judicial remedies too? If so, enumerate them. What are the general types of damages available in cases of Torts? Explain with examples. What is the doctrine of remoteness of damages? Discuss law on this point.

Judicial Remedies -

1. Damages - It is the most important remedy of all.

1. Nominal Damages - In cases of Injuria Sine Damnum (Ashby vs White)

2. Contemtuous Damages - When plaintiff has suffered a wrong but does not deserve compensation. For example, if the reason for battery was plaintiff's offensive remarks, judge may think that the plaintiff does not deserve compensation.

3. Compensatory, Aggravated, and Exemplary Damages

4. Prospective Damages - Compensation for damages that haven't yet happened but are likely happen because of defendant's tortious action.

2. Injunctions - An injunction is an order of the court directing the doing of some act or restraining the commission or continuance of some act. The court has the discretion to grant or refuse this remedy and when remedy by way of damages is a sufficient relief, injunction may not be granted. It includes temporary and permanent injunction.

3. Specific restitution of Property

Extra Judicial Remedies

Besides going to the court for justice, a person, in certain situations, can also have recourse to remedies without going to any court. Such remedies are called extra judicial remedies and are availed by a person by his own strength as self-help. These are -

1. Removal of trespasser - A person is entitled to remove the trespasser by force.

2. Recaption of chattels (personal belongings) - A person is entitled to take possession of his goods by force.

3. Abatement of nuisance - An occupier of a land is permitted to abate any nuisance that is affecting his land.

4. Distress Damage feasant - A person has the right to seize goods or cattle that has strayed on his land until compensation is paid.

Remoteness of Damage

The law allows only those losses which are not too 'remote'. There are two main tests of remoteness which are applied in tort, namely direct consequences and reasonably foreseeable consequences.

Direct Consequence - Provided some damage is foreseeable, liability lies for all the natural and direct consequences flowing from the breach of duty. In Re Polemis [1921] 3 KB 560 (CA), stevedores, who were servants of the defendant, negligently let fall a plank into a ship’s hold containing petrol in metal containers. The impact of the plank as it hit the floor of the hold caused a spark, and petrol vapour was ignited. The ship was destroyed. Arbitrators found that the spark could not have been reasonably foreseen, though some damage was foreseeable from the impact. The defendant was found liable because the claimant’s loss was a direct, though not reasonably foreseeable, result.

Reasonable Foreseeability - In The Wagon Mound (No. 1) [1961] AC 388, the defendant carelessly discharged oil from a ship in Sydney Harbour, and the oil floated on the surface of the water towards the claimant’s

wharf. The claimant’s servants, who were welding on the wharf, continued their work after being advised (non-negligently) that it was safe to do so. Sparks from the welding equipment first of all ignited cotton waste mixed up in the oil; then the oil itself caught fire. The claimant sued for destruction of the wharf by fire. The defendant was found not liable in negligence, because it was not reasonably foreseeable that the oil might ignite on water in these circumstances. Damage by fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy Council said that in the tort of negligence Re Polemiswas no longer good law, and liability

would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.

Q. What are the aims and objects of the CPA, 1986? Describe the constitution, functions and the procedure of District Forum under the CPA. What are the provisions of appeal under the CPA and before which authority an appeal lies against an order of an agency? Explain the

composition, jurisdiction, and powers of State Consumer Forum (State Consumer Redressal Commission) under CPA. Define and discuss the word"consumer" and "service" under CPA. Illustrate with cases.

Making money quickly is a very tempting proposition. Businesses, companies, shopkeepers, retailers, and sellers are all interested in maximizing their profits. In doing so, very often they neglect the best interests of the buyer. Many times, a buy gets a defective product, or a product that fails to perform as promised. Besides losing money put in purchasing a product, some times, due to defects in the product, the buyer is injured as well. In all such cases, there is a violation of a legal right of the buyer and he is entitled to sue the seller. Before enactment of the Consumer Protection Act, 1986, filing a civil suit for damages was the only option available to an aggrieved buyer. However, such a suit is very expensive and time consuming, because of which, buyers were not able to use this mechanism for relatively smaller amounts. This gave a field day to the traders because making substandard products or not delivering on promises was a cheap option to make quick money, after all, very few buyers would go to court. A common man was completely helpless because of no control and penalty over unscrupulous sellers.

In this background, the CPA 1986 gave power in the hands of the buyer by allowing an easier and cheaper way to redress their grievances, thereby holding the sellers accountable for their actions more often. It provides redress to a consumer when the purchased product is defective or when there is a deficiency in service. The following are aims and objectives of this act -

1. The most important objective of this act is to provide a fast and cheap way for consumers to hold the sellers accountable for their products or services.

2. Justice to consumers.

3. Protection of consumers from fraudsters or companies selling substandard products and services.

4. Penalty to sellers for substandard product or service.

5. Check on sellers and service providers.

Besides the above objectives, Section 6 of CPA 1986 also provides certain rights as objectives to the consumers. These are -

1. Right to be protected against goods that are hazardous or dangerous to life and property.

2. Right to be informed about the quality, quantity, potency, purity, standard and price or a product and service.

3. Right to competitive pricing.

4. Right to be heard and to be assured that consumer interest will receive due consideration at appropriate forum.

5. Right to redressal against unfair trade practices and exploitation of consumers.

6. Right to consumer education.

It is a complete code in the sense that it provides complete details of the constitution and jurisdiction of the commission and procedure for filing the complaint and appealing the decision. It does not depend on CPC and the cases can be finalized completely under this act. In fact, as held in Ansal Properties vs Chandra Bhan Kohli 1991, Consumer Disputes Redressal Agencies provide complete machinery for justice including a final appeal to the Supreme Court and so are outside the scope of High Courts and HCs can't entertain writ petitions against their judgments.

Under Section 9 of this act, three agencies are established to hear consumer complaints -

1. A Consumer Disputes Redressal Forum in each district (For amounts up to 20 Lakhs)

2. A Consumer Disputes Redressal Commission in each state. (For amounts from 20 Lakhs to 1 Cr)

3. A National Consumer Disputes Redressal Commission in the center. (For amounts above 1 cr)

District Forum

Composition (Section 10)

1. Each District Forum shall consist of -

1. A person who is, or who has been or is qualified to be, a District Judge, who shall be its President

2. two other members, one of whom shall be a woman, who shall have the following qualifications, namely -

1. be not less than thirty-five years of age,

2. posses a bachelor's degree from a recognized university,

3. be persons of ability, integrity and standing,

4. and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs, or administration

1-A. Every appointment under sub-section (1) shall be made by the State Government on the recommendation of selection Committee consisting of the following namely:

1. The President of the State Commission - Chairman,

2. Secretary, Law Department of the State - Member,

3. Secretary, in charge, of the Department dealing with Consumer affairs in the State - Member.

2. Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years/ whichever is earlier:

3. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.

Jurisdiction (Section 11)

1. Pecuniary Jurisdiction - Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation if any, claimed does not exceed rupees twenty lakhs.

2. Territorial Jurisdiction - A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or] personally works for gain or

2. Any of the opposite parties where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally works for gain, as the case may be, acquiesce in such institution; or

3. The cause of action, wholly or in part arises.

For a complaint to lie in a district forum, at least a part of the transaction of the actual business must have occurred in that district. In National Insurance Co vs Sonic Surgical 2003, a fire accident took place in Ambala and a part of the claim was partly processed in Chandigarh. It was held that merely processing of claim in one place does not form a ground to file a case in that district.

Functioning of a District Forum

Who can file a complaint (Section 12)

The following can file a complaint -

1. The consumer to whom the goods or services have been sold or are agreed to be sold.

2. Any recognized consumer association even if the consumer is not a member of the association. Recognized means any voluntary association registered under Companies Act 1956 or any other law for the time being in force.

3. One or more consumers, where there are numerous consumers all having same interest, with the permission of district forum.

4. The state or central government.

The complaint must be accompanied with such amount of fee and payable in such manner as may be prescribed.

The forum may accept or reject the complaint. The complainant must be given an opportunity to be heard before rejection. The acceptance or rejection will be decided in 21 days.

Procedure on admission of complaint (Section 13)

Upon acceptance of the complaint, the forum will send a copy to the opposite party within 21 days, who has to respond with his version of the complaint within 30 days (extendable by 15 days). Upon receipt of the response, the forum will give its decision. If no response is received, the forum will give and ex parte decision. An effort will be made by the forum to make a decision within 3 months of date of receipt of notice by the opposite party where no goods testing needs to be done or within 5 months otherwise.

Powers (Findings) of District Forum (Section 14)

If, after conducting the procedure in Section 13, the forum finds that there was a defect in the product or a deficiency in service or that any of the allegations in the complaint are true, it can ask the opposite party to do any of the following -

1. to remove the defect pointed out by an appropriate laboratory from the goods in questions.

2. to replace the goods with new goods of similar description which shall be free from any defect.

3. to return to the complainant the price or as the case may be, the charges paid by the complainant.

4. to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

5. to discontinue the unfair trade practice or restrictive trade practice or not to repeat it.

6. not to offer the hazardous product for sale.

7. to cease manufacture of hazardous goods and to desist from offering services that are hazardous.

8. when injury has been suffered by may customer who are not easily identifiable, the opposite party may be required to pay such sum as the forum deems fit.

9. to issue any corrective advertisement to neutralize the effect of any misleading advertisement.

10. to provide adequate costs to parties.

The District Forum also has the power to grant punitive damages in such circumstances as it deems fit.

The forum must take into account all the evidence and the documents produced by the parties and the order of the forum should be a speaking order, which means that it should detail the reasons behind the order. In K S Sidhu vs Senior Executive Engineer 2001, the complaint was dismissed by the District Forum by a non speaking order. It did not discuss the evidence or the documents submitted before it and thus it was held that the order was unjust and fit to be set aside.

Provisions for Appeal (Section 15)

From District Forum to State Commission (Section 15)

Any person aggrieved by an order by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. The state commission may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 25000/- (whichever is less).

From State Commission to National Commission (Section 19)

Any person aggrieved by an order by the State Commission may prefer an appeal against such order to the National Commission within a period of 30 days from the date of the order. The commission may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 35000/- (whichever is less).

As per section 19-A, appeal to the State Commission or the National Commission shall be heard as expeditiously as possible and an effort shall be made to dispose off the appeal within a period of 90 days from the date of admission. If the appeal is disposed of after this time, the commission shall state the reasons for the delay.

From National Commission to Supreme Court(Section 23)

Any person aggrieved by an order made by the National Commission in exercise of its power conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order. Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. Provided Further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person had deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.]

State Commission

Composition (Section 16)

1. Each State Commission shall consist of -

a. a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President :

Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;

b. two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman :

Provided that every appointment made under this clause shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely :-

(i) President of the State Commission - Chairman,

(ii) Secretary of the Law Department of the State - Member,

(iii) Secretary, in charge of Department dealing with consumer affairs in the State - Member.

2. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government.

3. Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-appointment.

4. Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion ] of his term.

Jurisdiction (Section 17)

1. Pecuniary Jurisdiction - Subject to other provisions of this Act, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and the Compensation, if any, claimed exceeds rupees 20 lakhs but does not exceed rupees 1 crore.

2. Territorial Jurisdiction - It can entertain appeals against the orders of any District Forum of the state.

As per section 17 A , on the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the State if the interest of justice so requires.

Procedure (Section 18)

The provisions of sections 12, 13 and 14 and the rules made there under for the disposal of complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission.

National Commission

Composition (Section 20)

1. The National Commission shall consist of-

a. a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President

Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India

b. not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:-

(i) be not less than thirty-five years of age;

(ii) possess a bachelor's degree from a recognized university; and

(iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:

Provided that not more than fifty per cent, of the members shall be from amongst the persons having a judicial background

Provided also that every appointment under this clause shall be made by I. Central Government on the recommendation of a Selection Committee consisting the following, namely:-

(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India - Chairman:

(b) the Secretary in the Department of Legal Affairs in the Government of India - Member;

(c) Secretary of the Department dealing with consumer affairs in the Government of India - Member;

Jurisdiction (Section 21)

Subject to the other provisions of this Act, the National Commission shall have jurisdiction -

(a) to entertain -

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs; and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Power and Procedure (Section 22)

The National Commission shall, in the disposal of any complaints or any proceedings before it, have -

(a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13;

(b) the power to issue an order to the opposite party directing, him to do any one or more of the things referred to in clauses (a) to (i) of sub-section (1) of section14, and follow such procedure as may be prescribed by the Central Government.

Section 22A. Power to set aside ex parte orders - Where an order is passed by the National Commission ex parte against the Opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice.

Section 22B. Transfer of cases - On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission

Who is Consumer?

As per Section 2 (1) (d) of CPA 1986 - "Consumer" means any person who, -

(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person wo avails of such services for any commercial purpose;

Based on this definition, the following are essential elements of a Consumer -

1. Buys goods or Hires Services - Physical products such as Car, TV, Utensils etc as well as intangible services ranging from Hair Cutting Saloon to Banking etc. are both valid purchases for being a consumer. The scope of services is quite wide and more and more things are coming into its ambit slowly. For example, in the landmark case of Indian Medical Association vs VP Shantha and others 1995, SC held that patients treated by a medical professional is also a consumer of medical services and is covered by CPA.

2. For consideration - To be a consumer, paying consideration is a must. However, consideration may be an immediate payment or a promise of future payment in full or in part. It can also be any arrangement of deferred payments. Further, unlike in Sale of Goods Act, consideration need not only be in the form of money but transaction of services, exchange or barter is also valid. In Motor Sales & Service vs Renji Sebastian 1991, the complainant booked a motor cycle to be delivered on a given date for a consideration. His turn was ignored. The dealer was ordered to give him the motorcycle for the price of that date and also 500/- as compensation.

3. For personal Use - The goods or service must be bought for personal use. Originally, a person who bought a product or a service for commercial use was not considered a consumer but after the amendment in 1993, use of such goods for making a livelihood is accepted. Thus, a self employed person who buys a Photocopy machine for his own shop is a consumer. However, goods must not be bought for resale.

In Anant Raj Agencies vs TELCO 1996, a company bought a car for personal use of a director of the company. It was held that since the car was bought for personal use and not for commercial use or for making a profit on a large scale, the company was a consumer.

4. Use by the purchaser or any body else - It is not necessary that only the purchaser of the goods or services be the user. Anybody who uses the goods or services with due permission of the purchaser, is also a consumer. Thus, in a landmark case of Spring Meadows Hospital vs Harjot Ahluwalia AIR 1998, SC held that the parents of the child who was treated by the hospital were hirers of the service while the child was the beneficiary and thus both were consumers.

What is a Service?

As per Section 2 (1) (o) "Services" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Based on this definition, the scope of services is quite wide. It will not be an exaggeration to says that any thing for which a customer pays and that is not a physical product is a service. Cinema halls, Health clubs, University, College, are all service providers.

In the landmark case of Indian Medical Association vs VP Shantha and others 1995, SC held that patients treated by a medical professional is also a consumer of medical services and is covered by CPA.

In Union of India vs Mrs S Prakash 1991, Telephone facility was held as a service and the telephone rental paid by the consumer was the consideration for the service.

The service must be a paid service. Free or non-profit services do not fall under this category and claims cannot be made regarding such services under the CPA. In A Srinivas Murthy vs Chairman, Bangalore Development Authority 1991, the question before the court was whether a tax payer is a consumer or not. A person, who paid house tax, was bitten by a stray dog and he sued Bangalore Development Authority for not taking care of the menace of stray dogs. It was held that there was no quid pro quo between the tax and the services rendered by BDA. The removal of stray dogs was a voluntary action of BDA and was done free of cost. Thus, the complainant was not a consumer and removal of dogs was not a service under this act.

Just like a defect, which renders a product not as useful as promised, there can be a deficiency in service, which render a service not as useful as promised at the time of sale. CPA 1986 allows consumers of services to take action against service providers for compensating for the deficiency in the promised service. As per section 2(1)(g), "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Thus, in Mahanagar Telephone Nigam vs Vinod Karkare 1991, when a complaint with the telephone dept. was pending for more than six months, it was held to be a deficiency in service.

In Indian Airlines vs S N Singh 1992, a metallic wire was present in the food given to a traveler because of which his gums were hurt. He was awarded 2000 Rs as compensation for deficiency in service.

LAW OF TORTS

Law of Torts

Tort law is the name given to a body of law that creates, and provides remedies for, civil wrongs that do not arise out of contractual duties

A person who is legally injured may be able to use tort law to recover damages from someone who is legally responsible, or "liable," for those injuries Generally speaking, tort law defines what constitutes a legal injury, and establishes the circumstances under which one person may be held liable for another's injury Torts cover intentional acts and accidents

Categories of torts (There are seven categories of torts)

1 Negligence

It is a legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents) Negligence is a type of tort or delict (also known as a civil wrong)

2 Statutory torts

A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts

One example is in consumer protection, with the Product Liability Directive, where businesses making defective products that harm people must pay for any damage resulting Liability for defective products is strict in most jurisdictions

3 Nuisance

It is a common law tort It means that which causes offence, annoyance, trouble or injury A nuisance can be either public (also "common") or private

Public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims

Private nuisance" is the interference with the right of specific people

4 Defamation

It is tarnishing the reputation of someone; it is in two parts, slander and libel Slander is spoken defamation and libel is printed and broadcast defamation, both share the same features

5 Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so Intentional torts have several subcategories, including tort(s) against the person, including assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud Property torts involve any intentional interference with the property rights of the claimant

6 Competition law

Modern competition law is an important method for regulating the conduct of businesses in a market economy

7 Economic torts

Economic torts are torts that provide the common law rules on liability for the infliction of pure economic loss, such as interference with economic or business relationships

Economic torts protect people from interference with their trade or business The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law, modern antitrust or competition law, and certain laws governing intellectual property, particularly unfair competition law The "absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon "

The principal torts can be listed as passing off, injurious falsehood and trade libel ,conspiracy, inducement of breach of contract, tortious interference (such as interference with economic relations or unlawful interference with trade), and watching and besetting These torts represent the common law's historical attempt to balance the need to protect claimants against those who

inflict economic harm and the wider need to allow effective, even aggressive, competition (including competition between employees and their workers)

Consumer Protection Act, 1986

Consumer Protection Act, 1986

Need for Consumer Protection Meaning of Consumer Different redressal Forums for Consumers, Rights of Consumers, Unfair Trade Practices, and Procedure for Filing Complaints

EXTENT AND COVERAGE OF CONSUMER PROTECTION ACT

The Act applies to all goods and services unless specifically exempted by the Central Government

It covers all the sectors whether private, public or cooperative

The provisions of the Act are compensatory in nature

The provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force

The Act envisages establishment of Consumer Protection Councils at the Central and State levels, whose main objects will be to promote and protect the rights of the consumers

Need for Consumer Protection

The consumer protection Act, 1986, provides for the better protection of consumers Unlike existing laws which are punitive or preventive in nature, the provisions of this Act are compensatory in nature The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award relief and compensation wherever appropriate to the consumer The act has been amended in 1993 both to extend its coverage and scope and to enhance the powers of the redressal machinery

Meaning of Consumer

WHO IS CONSUMER?

All of us are consumers of goods and services For the purpose of the Consumer Protection Act, the word "Consumer" has been defined separately for "goods" and "services"

(A) For the purpose of "goods", a consumer means a person belonging to the following categories:

One who buys or agrees to buy any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment;

It includes any user of such goods other than the person who actualy buys goods and such use is made with the approval of the purchaser

Note : A person is not a consumer if he purchases goods for commercial or resale purposes However, the word "commercial" does not include use by consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment

(B) For the purpose of "services", a "consumer" means a person belonging to the following categories:

One who hires or avails of any service or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment

It includes any beneficiary of such service other than the one who actually hires or avails of the service for consideration and such services are availed with the approval of such person

RIGHTS ENJOYED BY CONSUMER

1 Right to be protected against the marketing of goods and service that is hazardous to life and property

2 Right to be informed about the quality, quantity, potency, purity, standard and price of goods or services so as to protect the consumer against unfair trade practices

3 Right to choice wherever possible , access to a variety of goods and services at competitive prices

4 Right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums;

5 Right to seek redressal against unfair trade practices unscrupulous exploitation of consumers

6 Right to consumer education

7 Right to clean and healthy environment

Different redressal Forums for Consumers

The Act envisages a three tier quasi judicial machinery at the National, State and District levels

National Consumer Disputes Redressal Commission known as "National Commission" deals with complaints involving costs and compensation higher than Rs One Crore

State Consumer Disputes Redressal Commissions known as "State Commission, deals with complaints involving costs and compensation higher than Rs Twenty Lakhs and less than Rs One Crore

District Consumer Disputes Redressal Forums known as "District Forum, deals with complaints involving costs and compensation less than Rs Twenty Lakhs

JURISDICTION

If the cost of goods or services and compensation asked for is up to rupees twenty lakh ,then the complaint can be filed in the District Forum which has been notified by the State Governmentfor the district where the cause of action has arisen or where the opposite party resides A complaint can also be filed at a place where the branch office of the opposite party is located

If the cost of goods or services and compensation asked for is more than rupees twenty lakh , but less than rupees one crore then the complaint can be filed before the State Commission notified by the State Government or Union Territory Concerned

If the cost of goods or services and compensation asked for exceed rupees one crore then the complaint can be filed before the National Commission at New Delhi

COMPOSITION

Each District Forum shall consist of

(a) A person who is, or who has been or is qualified to be, a District Judge, who shall be its President;

(b) two other members, one of whom shall be a woman, who shall have the following qualifications, namely:

(i)be not less than thirty five years of age,

(ii) posses a bachelor's degree from a recognized university,

(iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:

Each State Commission shall consist of

(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President : Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;

(b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating

to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman :

The National Commission shall consist of

(a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President:1[Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India;

(b) not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:

(i) be not less than thirty five years of age;

(ii) possess a bachelor's degree from a recognized university; and

(iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:

RELIEF AVAILABLE TO CONSUMER

Depending on the facts and circumstances, the Redressal Forums may give order for one or more of the following relief

1 Removal of defects from the goods,

2 Replacement of the goods;

3 Refund of the price paid;

4 Award of compensation for the loss or injury suffered;

5 Removal of defects or deficiencies in the services;

6 Discontinuance of unfair trade practices or restrictive trade practices or direction not

to repeat them;

7 Withdrawal of the hazardous goods from being offered to sale; or

8 Award for adequate costs to parties

LIMITATION

The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which cause of action has arisen

Unfair Trade Practices

unfair trade practice" the detailed definition is given in the Consumer Protection Act, 1986 as amended by the Consumer Protection (Amendment) Act 1993 It means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :

(a) false or misleading representation,

(b) bargain price

(c) offering of gifts, prize, contest etc

(d) non compliance of product safety standard

(e) hoarding or destruction of goods

Procedure for Filing Complaints

Procedures for filing complaints and seeking redressal are simple There is no fee for filing a complaint before the District Forum, the State Commission or the National Commission ( A stamp paper is also not required) Three to five copies of the complaint on plain paper are required to be submitted by the complainant or his authorized agent in person or could be sent by post to the appropriate Forum / Commission

A complaint should contain the following information:

(a) The name, description and the address of the complainant

(b) The name , description and address of the opposite party or parties, as the case may be, as far as they can be ascertained;

(c) The facts relating to complaint and when and where it arose;

(d) Documents, if any, in support of the allegations contained in the complaint

(e) The relief which the complainant is seeking

The complaint should be signed by the complainant or his authorized agent

The complaint is to be filed within two years from the date on which cause of action has arisen

Reasonable Condition

1 Robinson v Balmain Ferry Co Ltd The Plaintiff entered defendants premises under a contract which involved his departure through a particular exit on

payment of a penny When the P wanted to leave, D refuse unless P pay It was held that it is not False Imprisonment because there is another way to out and the condition imposed is reasonable

2 Herd v Weardale Steel Co Ltd A miner refused to do certain work in breach of the contract He demanded to be taken out from mines 5 hours before hand but was not allowed to leave for 20 minutes It was held by House of Lords that there is no False Imprisonment Miner could sue for breach of contract

Arrest

Lawful arrest is not False Imprisonment

Arrest Without Warrant

Section 27(1) states that any private person may arrest any person in his view commits non bailable and seizable offence and person proclaimed under Section 44 Shall without delay brought to the nearest police station

By A Constable

1 Section 23(1)(a) CPC any Police Officer/Penghulu may arrest without warrant and without order from Magistrate

i Whoever commit seizable offence in any part in Malaysia, or

ii Against whom a reasonable complain or information receive suspected to commit seizable offence

2 Burden of proof is on the Defendant that there is a reasonable suspicious concerning seizable offence

Dallison v Caffery The test is objective test, whether a reasonable man would believe that there was reasonable and probable cause for arrest

Ramly & Ors v Jaafar Police arrested the Plaintiff base on information from one Zakaria during interrogation Trial judge held that the info was not reasonable and not credible but on appeal it was held the test should be objective test and it is reasonable

Abd Rahman v Tan Jo Koh Federal Court held that since during the arrest the respondent was in possession of offensive weapon (seizable offence) therefore reasonable

Information of Charge

1 Article 5(3) of Federal Constitution states that the ground of arrest must be told to the detainee as soon as may be He should be given choice to consult and defended by lawyer of his choice

2 Only the substance of the charge be informed is sufficient

The Duty of the Arrester

Arrest made by penghulu or private citizen shall be brought to the nearest police officer or station

Section 28 CPC the police officer will re arrest and without delay within 24 hours brought to Magistrate to be remanded under Section 117 of CPC

Article 5(4) of Federal Constitution provides there fundamental rights

Remedies

1 Self Help

The P may use reasonable force to escape

2 It is a remedy for the violation of personal liberty and illegal conficement

Law of Torts Trespass to Person

There are 3 types of intentional trespass to person They are Assault, Battery and False Imprisonment Common elements among them is physical harm inflicted by direct means

A Assault

An act which causes reasonable apprehension of the infliction of battery on P

Elements

1 There must be some act consisting of some gesture or preparation to commit battery

(body movement is necessary)

Example : to throw water it is assault Threat by telephone if normal no but if bomb – Yes

2 Words can negative what would otherwise be an assault

D laid his hand upon his sword and said ‘if it were not assize time, I would not take such language from you’ It is not assult because his word negative apprehension of immediate contact

Please refer to the case of Tuberville v Savage

3 Conditional threat can amount to assault

‘If you pay RM10 I will break your neck’

Please refer to the case of Read v Coker

4 Reasonable Fear of Harm

i Pointing loaded pistol is an assault

ii But if unloaded pistol, depends on the P, if there is apprehension of immediate infliction of battery – Yes

5 Ability to Carry Out the Threat

Example : A in a moving train pointing his fist to B who is on the platform Here no assault because D cannot carried his threat

6 Interception of Blow

Even the actual blow is intercepted by third person still assault

Stephen v Myers D advanced towards P in a first meeting by showing his Fist and intercepted by church warden and was held liable

B Battery

Intentional and direct infliction of force to another person

Elements

1 Force

i Any physical contact with the P’s body is enough No need infliction of hurt

ii It must be voluntary Even D does not foreseen the injury he is still liable

2 Hostile Intent

In the case Wilson v Pringle it was held that it was the act of touching the P which has to be intentionally and that touch had to be proved to be hostile touching This is to distinguish with ordinary everyday contact which is part of life

3 Without consent of P

Medical treatment there is implied consent Unsound mind/child there is no consent except by Guardian

* Defence For Battery

i If P consented to the contact (doctor/lawful games)

ii Self Defence – Reasonable force used

iii Some argued that there might be contributory negligence due to provocation by P

C False Imprisonment

The infliction of a bodily restraint which is not expressly/impliedly authorized by law False means wrongful Imprison means restraint of a man’s liberty from moving

Elements

1 Knowledge of the P is not essential

It is immaterial whether P knows he was detained

Meering v Graham White Aviation Co P was suspected of stealing some varnish from D’s factory He was taken to D’s office and 2 company policemen remained close to him while he was questioned In an action for False Imprisonment the D argued that P was unaware he was imprisoned Court rejected this argument

2 Restraint Must Be Complete

D is only liable if P’s liberty is totally restrained

Bird v Jones D wrongfully enclosed part of the public foot way on Hammaersmith Bridge He put seat for spectators asked P to pay but P refuse and insisted to go across D objected to proceed P sued for false imprisonment It was held that since there was a free way to go back the way he come, D was not liable It was because restrain was not complete

* Means of Escape – If there is means of escape but P don’t know it, still liable for False Imprisonment unless a reasonable man would have realized it

Law of Torts Fatal Accidents

In Fatal Accidents, cases two consequences follows:

A Estate Claims (Section 8 Civil Law Act)

Where the victim himself fatally wounded and compensation can be claimed by the

estate of the victim and distributed according to Intestacy

Special Damages

1 Out of Pocket

Expenses:

Medical care, transportation, clothing damage to vehicle and other damage (eg watch jewel)

2 Loss of Earnings\This can be claimed from the date of the accident till death

3 Funeral Expenses

Please refer to section 8(2)(c) of Civil Law Act

General Damages

1 Pain and Suffering

If the victim injured and was suffering from pain and then he died, the estate can claim this damages Provided the victim must be conscious

But if the victim died without regaining conscious, cannot claim

Please refer to the case of Low Yoke Ying v Sim Kok Lee

2 Loss of Expectation of Life – Previously was awarded but after the amendment Section 8(2)(a) of Civil Law Act abolished it

Loss of Future Earning for ‘Loss Years’ – after the person’s death also not recoverable

B Dependant’s Claim

As a result of the victim’s death, his dependants who are deprived of financial supports can claim compensation

Categories of Dependants (Section 7(2) of Civil Law Act)

1 Two types of Dependants

i Dependant in Law (adopt)

ii Dependant in Fact

2 Categories of Person as dependant:

i Husband/Wife

ii Child – son, grandson, daughter, granddaughter, stepson, stepdaughter, legally adopted child

iii Parents both sides – father, mother, grandfather, grandmother

Special Damages

1 Section 7 (3) of Civil Law Act

Dependants can claim any Loss of support suffers or any expenses incurred :

i medical expenses

ii cost of travelling to funeral service

iii placing death announcement

2 Funeral Expenses – if incurred by dependant

3 Pre Trial Loss of Support

General Damages

1 Bereavement (Section 7(B) of Civil Law Act)

This can be claimed by

i spouse of deceased

ii parents of deceased

iii minor & unmarried child

Section 3 (3D) of Civil Law Act Court can award RM10,000 00

2 Loss of Services or Consortium (Section 7(3)(iii) of Civil Law Act)

Parent cannot claim for deprived of the Loss of service by the Child But the Court award Loss of Consortium to the parents

Husband/Wife cannot claim for loss of consortium with wife

3 Loss of Financial Support

The dependants can claim for Loss of earning (future earning)

Section 7(3)(iv)(a) of Civil Law Act In assessing Loss of Earning after the death court must consider :

i if victim has attained 55 years old cannot claim

ii whether deceased before the death was in good health but for the injury and was receiving earning by own labour or gainful activity before death

iii multiplicand is the annual loss and period of dependency in the multiplier

iv other factors considered:

expected working life of deceased

period of support required by dependant

whether dependant will receive other sources of income as a result of the breadwinners death

Section 7(3)(i) Insurance payments, EPF, Pension and Gratuity/Compensation paid under written law in respect of the death are not considered

Illegal sources of income must be excluded

Chua Kim Suan & Teoh Teik Nam v Govt of Malaysia Court must ignore propect of increase in earning

Propect of Promotion

Section 7(3)(iv)(c)

Must deduct Living Expenses of deceased

Section 7(3)(iv)(d) calculation are same (deceased age 30 years & below = 16 years )

Law of Torts – Consent

Volenti Non Fit Injuria

If P succeeded in proving the ingredient of a particular torts, D cant refute it by the available defences One of the defence is Volenti Non Fit Injuria

If P consented to the act by P which causes him harm, then no remedy in torts ie lawful sport lawful operation

This doctrine works in 2 ways

i consent given before the conduct complained either expressly or implied Here the duty was not broken by D

ii Consent that shows P had waived his right of action This consent is given after the breach of duty

However consent must fulfill certain qualification

i Consent must voluntary and free Mere knowledge of risk does not imply that P undertake the risk Please refer to the case of Letang v Ottawa Electrical and Kanagasapathy v Narsingam

ii Consent of a child In England child 16 years and above can give consent for surgical, medical and dental treatment if he knows nature of consequences and matured But if under age must get consent of guardian

iii Consent by fraud If P aware of the nature of act, consent is affective and court will not see qualify act Please refer to the case of Megarty v Smine

iv Consent to medical treatment Must explain in broad risk of treatments If not explain then no consent Please refer to the case of Chatterson v Gerson If emergency consent is implied Please refer to the case of Mill v Potter

Passengers Case

i A PDL driver still owes duty of care to passenger Please refer to the case of Wettleship v Weston

ii Drunken driver If passenger knew high quantity of alcohol which might cause danger contributory negligence Please refer to the case of Owens v Brimmel

iii Notice riding on own risk D must bring to the knowledge of P about the notice Please refer to the case of Teh Hwa Seong v Chop Lim Chin Moh & Anor and also Section 55 Commercial Vehicle Licensing Board

Sport Spectators

D can plea volenti non fit injuria if acted in normal circumstance but if acted beyond reasonable standard of care D cannot plea volenti non fit injuria Please refer to the case of Wooldridge v Sumner

Public Policy Illegality

If P is a wrongdoer and the harm is a consequence of unlawful act – cannot plea volenti non fit injuria Please refer to the case of Ashton v Turner But if before the unlawful act can plea volenti non fit injuria

Law of Torts Breach of Duty

Once it is established that Defendant owes a duty of care to plaintiff, it must then prove that Defendant had breached that duty

The test is standard of care of a reasonable man What a reasonable man in such circumstances will do, or doing something which a prudent or reasonable will not do

Please refer to the case of Blyth v Birmingham Waterworks Co

However the standard of care various according to the circumstances

Please refer to the case of Glasgow Corp v Muir

Duty of Care for Professionals

Bolam Test

Where the situation is involved with use of some special skill/competencies, the standard is of an ordinary skilled man exercising or professing to have such skill No need to prove standard of highest expert skill

Please refer to the case of :

i Bolam v Friern Hospital Management Committee

ii Chim Keow v Govt of Malaysia & Anor doctor failed to inquire medical history before prescribe penicillin and patient died Held liable

iii Elizabeth Choo v Govt of Malaysia not negligence ig before follow general and approve practice in the situation which he faces

In deciding the standard of care, the court will consider the following factors What reasonable man will do in such a circumstances

i Whether defendant foresees the consequence cases (harm) This depends on particular time and the experience Please refer to the case of ROC v Minister of Wealth

ii Magnitude of the risk This involve the probability of injury case and seriousness of injury

Bolton v Stone although D foresee but the risk was small So not liable

Miller v Jackson risk of injury to property and person is high held liable

iii Social utility If the purpose is important then D is justified if he expose plaintiff to that risk Please refer to the case of Watt v Merfordshire County Council

iv Practicability of precautions Risk must be balance with cost and practicability of eliminating the risk Please refer to Latimer’s case

Law of Torts Development of Duty of Care

Heaven v Pender D must owe duty to P The scope is not wide

Donohue v Stevenson develop Neighbor Principle

i foresee ability

ii proximity

*mix reaction of judges Until 1970 in Dorset’s case

Ann v Merton London the 2 stages test:

i sufficient relationship and foresee ability

ii whether likely to limit or reduce the scope of liability (Policy)

* open floodgate (economic L) misinterpretation

Murphy v Brentwood overruled Ann’s case because wrongly decided

Present Situation

1 Reasonable foresee ability that harm will be caused Please refer to the case of:

i Walker v Northumberland County Council

ii Haley v London Electric Board (Blind man)

iii Bourhill v Young (not reasonable)

2 Proximity Relationship Please refer to the case of:

i Home Office v Dorset Yatch

ii Bourhill v Young

3 Fair, Just and Reasonable

i Roundel v Worsley (lawyer)

ii Hill v The Chief Constable of West Yorkshire (police)

iii March Rich v Bishop Rock Marina

Law of Torts Present Law On Nervous Shock

Elements Of Nervous Shock That The Plaintiff Must Prove

A That the Plaintiff is suffering from positive psychiatric illness and not mere grief, sorrow and anxiety

Please refer to the case of Hinz v Berry

Thin Skull Rule

i In claim for Nervous Shock, the principle that the defendant must take his victim as he finds him is not applicable

ii The victim of Nervous Shock must be unduly sensitive and he must be of normal emotional fibre Please refer to the case of Boruhill v Young

iii In certain circumstances P still can recover if he predispose to mental illness if he can show that he was living a normal life just before the disaster Please refer to the case of Jaensh v Coffey

Shock as a result of threatened accident – P still can claim

Dooley v Cammell Laird & Co Ltd P was a crane driver He suffered Nervous Shock after his load, without any fault of his part fell into the hold of the ship where his friends were working He feared that he might have killed or injured them Court awarded his claim

B That P’s psychiatric illness is caused by the breach of duty by the defendant Please refer to the case of Hinz v Berry

C That his Psychiatric illness is reasonably foreseeable and that proximity factors is satisfied

Relationship between P and the injured person is so close that it is reasonably foreseeable that P will suffer from nervous shock

McLoughlin v O’Brian parent v children and Spouse only

Alcock’s Case It is also extended to all relationship that is based on love and affection (family relationship like brothers and sisters (Please also refer to Storm v Greeves) where brother who saw his sister was hit by a lorry awarded damages

A Bystander who is unconnected to the victim also can claim if the circumstances of a catastrophe occurring very close to him were particularly horrific

Rescue cases – if a rescuer suffers nervous shock due to his rescue operation he is still entitle to a claim Here the rescuer need not have to prove closeness of ties with the victim

Chadwick v British Railways Board P assisted in the rescue of passengers involve in serious railway accident and suffer nervous shock He is entitle to claim

Proximity of P to the accident in time and space

i Present at the scene or near the scene and immediate resort to scene on being told is necessary

ii Witnessing immediate aftermath of accident not at scene but at hospital is sufficient

McLoughlin v O’Brian

iii Post accident like identifying victim in mortuary not sufficient

Jaensch v Coffey

iv Both husband and wife involve in accident Husband died and wife unconscious later was told and suffer nervous shock Still can claim

Schneider v Eishovitch

Andrew v William Mother died and P heard later still can claim Both involve in same accident,

Communication by Third Person

i Shock brought about from communication by others

Hevican v Ruane P was told that the minibus in which his favorite son was traveling was involve with an accident He was taken to the Police Station and was informed his son died He then went to mortuary and identifies the body He suffers nervous shock It was held that P is still entitled to the claim although communicated by third party

ii Watching the event in television or hear from radio – this is still not sufficient because it does not satisfy the requirement of proximity factors Plaintiff can’t recognize individuals involves However it is not totally ruled out yet Please refer to the Alcock’s Case

Law of Torts Defences

D can escape liability

Consent of the Plaintiff

P expressly or impliedly consented to the accumulation of the thing escape and there is no negligence on the part of D D is not liable

Please refer to the case of Rainham Chemical Works v Belvedere Fish Guano Co

Statutory Authority

Public bodies storing water, gas, electricity etc sometimes exempted from liability by statute if reasonable care has been taken It all depends on statutory interpretation

Green v Chelsea Waterworks Co D’s company authorized by Parliament to lay a main It burst without D’s negligence and caused flood to P’s house D was not liable

Charing Cross Electricity Co v Hydraulic Power Co On similar fact the court held D was liable because not exempted by statute

Default of the Plaintiff

If the damage is caused solely by the act or default of the Plaintiff – no remedy under Reylands rule

Ponting v Noaked P’s horse nibbled some poisonous tree near the defendants boundary and died D is not liable

Common Benefit

Where the source of the danger is maintained for the common benefit of P & D, then D is not liable if escape

Carstairs v Taylor A hired from B the ground floor B stays upstairs A box contained water from roof was groaned by rat which caused the water leak and destroy A’s good B is not liable

Act of third Party

Where the defendant accumulates the thing into his land but the escape is caused through the unforeseen act of a third party D is not liable

Box v Jubb D’s reservoir over flowed partly because a third party who was conducting operations higher up the stream discharged downstream an unusual large volume of water into D’s reservoir D was not liable

Hale v Jennings Bros Proprietor of a chair O’plane was liable for the escape of a chair caused by a passenger tempering with it which cause P to suffer injury D should have reasonably foresee such act and must prevent it because he had control over

Act of God

An escape due to natural causes and without human intervention and unforeseeable then there is defence of act of God

Nichols v Marsland D formed an artificial lakes by damming up natural system An extra ordinary and violent thunderstorm broke down the artificial barriers and water escape destroying P’s bridge It was held that D is not liable due to act of God

Greenock Corp v Caledonian Railway D constructed a pond by diverting natural stream Heavy rainfall destroyed it and the water poured to street cause damage to P’s property Heavy rainfall is not act of God D must have secured

Modern Position of Rule Reylands v Fletcher

Reylands Rule

1 There must be accumulation and the substance must likely to cause danger if escape

2 Condition of non natural user with exceptional risk

3 Reasonable foresee ability required

4 Non occupier also can get remedies

Nuisance

1 No need accumulation and escape

2 No need Condition of non natural user with exceptional risk

3 Reasonable foresee ability required

4 Non occupier has no remedy

* Now the rule seldom from successful claim in court Since it has developed the scope which is most likely like negligence

Law of Torts Causation In Law Cases

Re Polemis (1921)

The chatterer of a ship loaded benzene on board the ship The benzene leaked causing the bottom of the deck fill with vapor A stevedore, employed by the chatterer negligently dropped a wooden plank into the hold and causes a spark which ignited the vapor and the ship exploded The owner of the ship sued the chatterer on the ground that the ship exploded due to the chatterer’s servant (stevedore) negligent On the other hand chatterer claimed that the negligence of their servant was too remote to recover under negligence Court of Appeal held chatterer liable and damage was not too remote D is liable if the damage was the direct consequences of his negligence although it could not have been foreseen

The Wagon Mound (No:1) [1961] Privy Council

Due to the negligence of defendant’s employees, furnace oil leaked from the defendant’s ship ‘The Wagon Mound’ The oil discharged into Sydney Harbor The oil split floated across the Plaintiff’s wharf where welding was taking place The P sought scientific advice as to the likelihood of the oil igniting during their welding operations and was assured danger of fire P restarted their operation During the operation, a metal dropped on the floating oil and destroyed the P’s wharf Privy Council held that defendants were not liable for the destruction of the wharf because they could not have foreseen the risk of damage by fire Principle: The damage must have been reasonably foreseeable consequences "Reasonable Foresight Test"

Hughes v Lord Advocate [1963]

D opened a manhole in a street and left covered with only an erected tent and some paraffin lamps surrounding the manhole It was unguarded An eight years old boy dropped one of the lamps in the hole which causes explosion and he felt into the hole and sustained severe burn D argued that the explosion was too remote to be foreseen and so not liable House of Lord held that D had breached their duty to safeguard P from the explosion and D was liable so long as injury by burning was foreseeable it does not matter the method by which the burning occurred

Chan Loo Khee v Lai Siew Saw & Ors

D left his car with its parking lights on the side of the road This causes two approaching cars collided Majority of Court held that D was not liable because he did not create a substantial risk of the collision

Law of Torts Causation In Law

Remoteness of Damages

Even P had proved that D owes Duty of Care and D Breach of Duty and cause the damage, P must proved that whether the damage suffered by him is one which is recoverable in negligence There are limit placed by law as to what extent P can recover in negligence This is known as remoteness of damage

Originally the test was laid down under The Rule of Re Polemis (1921) ie D is liable if the damage was the direct consequence of his negligence although it could not had been foreseen

The Wagon Mound I (1961) PC

The damage must have been reasonable foreseeable consequences (Followed by Malaysian Court)

Once P established that a particular kind of damage is foreseeable it is enough It doesn’t matter whether the extend of the injury or its manner how it occur is foreseeable or not

Hughes v Lord Advocate But this rule was not followed in Doughty v Turner Mfg (Both must have been foreseen)

Extensive Damage

As long as the type of damage is foreseen, it does not matter that its severity could not have been foreseen

Bradford v Robinson rentals (frostbite) was unforeseen but the exposure are foreseen may cause injury D was held liable

Egg Shell Skull Rule and Thin Skull Rule

The defendant must take his victim as he finds him

Smith v Leech Brain Co lips burn due to D’s negligence Subsequence cause was cancer and died D was held liable

Please also refer to the case of Robinson v Post Office

Impecuniosities

The initial damage inflicted by D may aggravate P due to his financial disability Whether P can claim or not

The Liesbosch it was held not claimable because it is too remote and unforeseen The law does not cover to that extend

Dodd Properties (Kent) Ltd v Canterbury City Council The court allow claim from date of trial and not from date of damage because of it is foreseeable

Suicide Cases

If P could not stand initial injury and commit suicide, D still liable

Please refer to the case of Kirkham v Chief Const of Greater Manchester Police

Novus Actus Interveniens

Damage occurring after novus actus interveniens is regarded as too remote Chain of causation breaks There are three (3) types:

Intervening Act of Plaintiff

If the conduct of P has amounted to a novus actus interveniens then D is not liable

Mc Kew v Holland & Hannen & Cubitts unreasonable act of P putting himself under emergency which cause him injury D is not liable

Wieland v Cyril Lord Carpet the second injury was foreseen as result of first injury Not novus actus D liable

If P and D contributed to P’s injury then contributory negligence

Intervening Act by Third Party

Ground where defendant’s negligence was followed by the act of third party causing further damage to P then D is not liable if he can prove that the intervening act caused by third party

If D’s negligence is reasonably foreseeable that it may cause the third party to act negligently the D is liable Please refer to the case of Stansbie v Troman and Home Office v Dorset Yatch

But in the case of Lamb v London Borough of Camden gave alternative view If damage is unforeseen consequences of D’s negligence then D is not liable

Novus Actus Due to Natural Event

D not liable

Please refer to the case of Carslogie Steamship v Royal Norwegian Govt

Law of Torts Contributory Negligence II

Elements of Contributory

Foresee ability

P is liable for contributory negligence if he reasonably foresee that if he did not act as a reasonable man, he might hurt himself

Jones v Livox Quarries P rid at the back of a traxcavator which is against the instruction A dumber travelling behind the trax collided it and P injured P was held contributory negligence

P’s Conduct which is Contributory Negligence

Act against order/instruction

1 Jones v Livox Quarries riding at back of traxcavator

2 Stapley v Gypsum Dcd knew the roof of the mine was dummy yet went on work against the instruction

Driver Drunken

Oewn v Brimmell if P a passenger knew the driver was drunk with such quantity which might danger P is contributory negligence

Low Kwan Moi v Ramli & Ors & Govt of Malaysia jump into river police raiding gamble (contributory negligence)

Not Wearing Crash Helmet

1 O’Connell v Jackson although D negligence for accident but P was contributory negligence to his injury for not wearing helmet

2 Wong Ah Gan v Chan Swei Yueh & Anor P is not contributory negligence because not wearing helmet unless P foresee it might cause injury

Chan Loo Khee v Lai Siew San & Anor parking car with light on at highway not contributory negligence

Yeo Lian Hwa v The Hock Lee Amalgamated Bus Co boarding into moving bus is contributory negligence

Wong Mun Kong v pacific & Oriental Underwriter (M) Sdn Bhd making U turn after giving signal light makes P contributory negligence

Causation

The word ‘result’ in the section refers to causation

Jones v Livox Quarries What was the cause of the damage was P contributed partly to his damage

Stapley v Gypsum Mines The question of causation to be determined by applying common sense to the fact of each case

Froom v Butcher the question is not what was the cause of accident but what was the cause of damage

Conduct in the Agony of the Moment

If D’s negligence put P in dilemma and P choose a course of conduct which prove to be wrong, D cannot escape liability provided

i P acted in reasonable apprehension of danger

ii Method used must be reasonable one

Jones v Boyce due to D’s negligence a coach break and uncontrolled P jumped to escape but injured It was not contributory negligence

British School of Motoring Ltd v Simms & Anor the act of stopping a test car by examiner was held reasonable under such circumstances because leaner makes a mistakes

Act of Infant/Children

If the child is very young no contributory negligence but if older child then there is a contributory negligence if he fails to exercise below the standard of care of a child of his own age

Lynch v Nurdin 7 years old child who climb on the unattended and cart no contributory negligence

Gough v Thorne 13 ½ years old girl together with her brothers cross the road after the lorry driver signal to do so A car came from behind the lorry and knocks her P did no contributory negligence because if a child at that age persuaded to cross, will do so

Symes v Ling Ngan Ngien a child left in the car by her mother The child then came out and cross the road and knocked There was no contributory negligence

Jag Singh v Tong Fong Omnibus Co 7 years old infant while waiting for bus surged into the roadway and knock by the bus It was contributory negligence liable

Tan Siew Goh v Tan Tien Soo 12 years old girl alighted from bus quickly cross without looking It was contributory negligence liable

Tan Guan Khen & Anor v KL Klang Port Swettenham Omnibus Co 8 years old school boy attempt board bus and the bus moved He was injured It was not contributory negligence because he was too young

Workman Contributory Negligence

Flower v Ebbw Vale Steel, Iron & Coal Co the test is what an ordinary workman in the circumstances could have done

Caswell v Powerll Duffryn Associated Collieries Ltd If there is any statutory provision which is to protect a worker then it must be complied Failure to do so is contributory negligence

Jayes v Imi (Kynoch) Ltd a workman put his hand inside machine and cut his finger It was held that 100 % contributory negligence and he gets nothing

Malaysia’s Section 12(1) Civil Law Act court cant held P 100 % contributory negligence

Apportionment of Damages

Section 12(1) of Civil Law Act states that court must apportioned damages on the basis of just and equitable It is a question of fact

i the gravity of risk assumed by the claimant is an important factor

Helson v Mckenzies Ltd P lost her handbag contained huge money A sales assistant handed over to P and found something missing It was held that P contributed more to the negligence

Fitzegarld v Lane The issue of contributory negligence on the part of P should be kept separate from the determination of contribution between joint tortfeasor

For example if D contributed 70% and P contributed 30% then D must only pay $70,000 00 if the claim is $100,000 00

If D1 contributed 70% and D2 contribute 30% and P contributed 30% = 100% 30% = 70% That 70% divide between D1 70% and D2 30%

Law on Torts (part 1)

Law on Tort

Definition of Tort

Tort derived from the Latin word ‘tortum’, which means ‘to twist’ It includes that conduct which is not straight or lawful It is equivalent to the English term ‘wrong’

Salmond It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation

We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere branch of contract or breach of trust

Distinction between Tort and crime

Tort Crime

i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong i) More serious wrongs have been considered to be public wrongs and are known as

crimes

ii) The suit is filed by the injured person himself ii) The case is brought by the state

iii) Compromise is always possible iii) Except in certain cases, compromise is not possible

iv) the wrongdoers pays compensation to the injured party iv) The wrongdoer is punished

Distinction between Tort and breach of contract

Breach of contract Tort

i) It results from breach of a duty undertaken by the parties themselves i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law

ii) In contract, each party owes duty to the other ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large

iii) Damage of contract is liquidated iii) Damage of tort is unliquidated

iv) It provides limited remedy iv) It provides unlimited remedy

Distinction between Tort and Breach of trust

Tort Breach of Trust

i) Damage of tort is unliquidated i) Damage of breach of trust is liquidated

ii) Law of tort was part of common law ii) Law of trust was part of Court of Chancery

iii) Tort is partly related to the law of property iii) Trust is a branch of law of property

Latin terms and maxims

Causa causans An immediate and effective cause

Causa sine quanon A necessary cause; the cause without which the thing cannot be or the event would not have occurred

Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative

East India Commercial Co v Collector of Customs, AIR 1962

Municipal Board v State Transport Authority, AIR, 1965

Prem Bus Service v R T A, AIR 1968

Chockalingam v C I T, AIR, 1963

Inayatullah v Custodian, Evacuee Property, AIR, 1958

Volenti non fit injuria There is no injury to one who consents

Hall v Brooklands Auto Racing Club The plaintiff was a spectator at a motor car race being held at Brooklands 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

Padmavati v Dugganaika While the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same

It was held that neither the driver nor his master could be made liable, first, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case

Wooldrige v Sumner The plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena One of the horses, belonging to the defendant, rounded the bend too fast As the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course and there he was seriously injured by the galloping horse The horse in question won the competition It was held that since the defendants had taken due care, they were not liable The duty of the defendants was the duty of care rather than duty of skill

Ex turpi causa non oritur actio – No action arises from a wrongful consideration

Hardy v Motor Insurers’ Bureau This was a case where a security officer was dragged along when he tried to stop a car Lord Denning MR said: ‘no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it… It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime He is under a disability precluding him from imposing a claim ’

Revill v Newberry An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim

Damnum sine injuria – Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy It is also termed damnum absque injuria

There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it

Gloucester Grammar School Case The defendant, a schoolmaster, set up a rival school to that of the plaintiffs Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter It was held that the plaintiffs had no remedy for the loss thus suffered by them

Mogul Steamship Co v McGregor Gow and Co A number of steamship companies combined together and drove the plaintiff company out of the tea carrying trade by offering reduced freight The House of Lords held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits

Ushaben v Bhagyalaxmi Chitra Mandir – The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa” It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed It was observed that hurt to religious feelings had not been recognized as a legal wrong Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion Since there was no violation of a legal right, request of injunction was rejected

Action v Blundell – The defendants by digging a coal pit intercepted the water which affected the plaintiff’s well, less than 20 years old, at a distance of about one mile Held, they were not liable It was observed: “The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the

neighbour’s well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action

Injuria sine damno This maxim means injury without damage Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage Thus, the act of trespassing upon another’s land is actionable even though it has done the plaintiff not the slightest harm

Ashby v White –

Bhim Singh v State of J & K – The petitioner, an MLA, of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session He was not produced before the Magistrate within the requisite period As a consequence of this, the member wad deprived of his constitutional right to attend the Assembly session There was also violation of fundamental right guaranteed under the Constitution By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to 50,000 were awarded to him

More……………………………………………………………

Terminologies

Malice A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse

In its legal sense it means a wrongful act done intentionally without just cause or excuse

Malice is a wish to injure a party, rather than to vindicate the law Malice of two types:

i) Malice in fact

ii) Malice in law

Malice in fact – Means an actual malicious intention on the part of the person who has done the wrongful act It is also called express or actual malice

Malice in law – It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen

Motive – Motive is that which incites or stimulates a person to do an act It is the moving power which impels to action for a definite result

Motive is mainspring of human action It is cause or reason It is something which prompts a man to form an intention

Intention – A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or which it wishes to express or achieve; the willingness to bring about something planned or foreseen

Injury In legal parlance, ‘injury’ means any wrong or damage done to another, either in his person, rights, reputation or property

Meaning under Penal Code, 1860 (section 44) – the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property

Hurt – Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt

Malfeasance – it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to do

The word ‘malfeasance’ would apply to a case where an act prohibited by law is done by a person (Khairul Bahsar v Thana Lal AIR 1957)

Misfeasance – Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful authority; official misconduct; breach of law

The word ‘misfeasance’ would apply to a case where a lawful act is done in an improper manner

Nonfeasance Non performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty

Nonfeasance would apply to a case where a person omits to do some act prescribed by law

Distinction between ‘Misfeasance’, ‘nonfeasance’ and ‘malfeasance’ – Misfeasance is the improper doing of an act which a person may wilfully do Nonfeasance means the omission of

an act which a person ought to do Malfeasance is the doing of an act which a person ought not to do at all

Remedies

Remedies are of two types (i) judicial and (ii) extra judicial

Judicial remedy is of three types:

(i) Damages, (ii) Injunction and (iii) Restitution of property

Types of damages

a) Exemplary or Vindictive damages – are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice etc

b) Ordinary or Real damages – are compensation for general damage General damages are those which the law implies in every breach of contract and in every violation of a legal right

c) Nominal damages – They are awarded for the vindication of a right where no real loss or injury can be proved

d) Contemptuous damages

Injunction A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain from doing a particular thing Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC 1908 Types of injunction –

(i) Mandatory – When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach (s 55 of the Specific Relief Act, 1877)

(ii) Permanent or perpetual – By perpetual injunction a defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s 53, the Specific Relief Act, 1877)

(iii) Temporary – Temporary injunction is such as is to continue until a specified time, or until the further order of the Court It is regulated by the CPC (s 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1

(iv) Ad interim

Restitution of property – Restitution means restoration of anything to its rightful owner

Extra judicial remedies are

i) Self defence – The use of force to protect oneself, one’s family, or one’s property from a real or threatened attack

ii) Expulsion of trespassers – Forcibly evicting the trespasser

iii) Reception of chattels – Chattel means movable or transferable property; personal property

iv) Re entry of land –

v) Abatement of nuisance – Abatement is the act of eliminating or nullifying; the act of lessening or moderating

vi) Distress damage feasant – the right to seize animals or inanimate chattels that are damaging or encumbering land and to keep them as security until the owner pays compensation

Who may sue and who may be sued

Every person can sue in case of tort including the minor with the consent of his guardian or the court

The following persons cannot sue

i) Citizen of foreign state – If a citizen of foreign country wants to file a suit against a Bangladeshi or a other citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s 83 of CPC)

ii) Alien enemy – Every person residing in a foreign country the Government of which is at war with, or engaged in military operations against Bangladesh and carrying on business without a license will be regarded as an alien enemy

Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue No alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s 83 of CPC)

iii) Foreign state – A foreign state cannot sue unless it is recognized by the Government

vi) Bankrupt – The guiding law in this regard is the Bankruptcy Act, 1997 If a person is declared insolvent, his properties are taken over and a ‘receiver’ is appointed as the supervisor of that property A bankrupt cannot sue as long as civil wrongs are concerned

v) Felons/Convicts – Felon is a person who has been proven guilty and declared with punishment but fled away Convict is a person who has been proven guilty but has not fled away

A felon cannot file a suit But a convict can file a suit

vi) Corporation – A corporation gets a legal entity when it is registered No unregistered corporation can file a suit

vii) Child in mother’s womb – This is called ‘pre natal injuries’

Walker v G N Ry Co of Ireland – the plaintiff, a child, sued the railway company for damages on the ground that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident due to railway’s negligence, when the plaintiff’s pregnant mother travelled on the defendant’s railway It was held that the defendants were not liable for two reasons Firstly, the defendants did not owe any duty to the plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiff’s claim was very uncertain

Montreal Tramways v Leveille – The Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the negligence of the defendants

Majority of the writers are in favour of the view that an action for pre natal injuries should also be recognized, once that the act of the defendant is considered to be tortious

Who may not be sued

i) President/head of the state – According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit can be filed against the President as long he is holding the post of the President

ii) Foreign sovereign – No suit can be filed against a foreign sovereign unless a consent to the same is obtained from that sovereign (s 86 & 87)

iii) Ambassador / High Commissioners – High Commission is an embassy from one commonwealth country to another

iv) Public servants – The list of the public servants are given in s 21, 13 & 14 of the Penal Code, 1860 Also who are appointed through PSC are to be regarded as public servants

An application for consent from the Government is required before filing a suit against them

v) Corporation – Unless it is a registered corporation, a suit cannot be filed against it

vi) Infant / Minor – According to the Penal Code, a minor is a child of 9 – 12 years But age of the minor varies in various Statues

vii) Unsound mind – There are various Act for lunatics and unsound minds, e g the Lunacy Act, 1912

Negligence

Essentials of negligence

i) The defendant owes a duty of care to the plaintiff;

ii) The defendant made a breach of that duty; and

iii) The plaintiff suffered damage as a consequence thereof

i) The defendant owes a duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty There is no general rule of law defining such duty It depends in each case whether a duty exists

Donoghue v Stevenson – A purchased a bottle of ginger beer from a retailer for the appellant She consumed that and seriously suffered in her health She found some snail at the bottom of the bottle She sued for compensation The defendant pleaded that he did not owe any duty of care towards the plaintiff The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty

Palsgraaf v Long Island Railroad Co – The plaintiff with a package was trying to board a moving train Two servants of the defendant came to help her One of them pushed her from the back At this moment the package fell on the rail track The package contained fireworks and it exploded The plaintiff was injured She sued the defendants alleging negligence on the part of their servants It was held that she could not recover Cardozo CJ said, the conduct of the defendant’s servant was not wrong Relatively to her it was not negligence at all

Duty depends on reasonable foreseeability of injury

If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable

No liability when injury is not foreseeable

Glasgow Corp v Muir – The manageress of the defendant Corporation tea rooms permitted a picnic party Two members of the picnic party were carrying a urn of tea through a passage There were some children buying sweets and ice cream Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event

Reasonable foreseeability does not mean remote possibility

Bolton v Stone – A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured The Court of Appeal held that the defendants were liable for negligence But the House of Lords held that the defendants were not liable on the basis of negligence

Duty of care – Booker v Wenborn (1962) The defendant boarded a train which had just started moving but kept the door of the carriage open The door opened outside, and created a danger to those standing on the platform The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform

ii) Breach of duty – Breach of duty means non observance of due care which is required in a particular situation The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc are offered

(a) The importance of the object to be attained –

K Nagireddi v Government of Andhra Pradesh – Due to construction of a canal by the state government, all the trees of the plaintiff’s orchard died The plaintiff alleged that the government due to negligence did not cement the floor It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government

(b) The magnitude of risk –

Kerala State Electricity Board v Suresh Kumar – A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries The Electricity Board had a duty to keep the overhead wire 15 feet above the ground The Board was held liable for the breach of its statutory duty

(c) The amount of consideration for which services, etc are offered –

Klaus Mittelbachert v East India Hotels Ltd – the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool It was observed

that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available

iii) The plaintiff suffered damage – It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence

Res ipsa loquitur It means ‘the things itself speaks’ When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant

Hambrook v Stokes Bors – Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death The defendant was held liable

Dickson v Reuter –

Contributory negligence

When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm

Rural Transport Service v Bezlum Bibi (1980) – The conductor of an overcrowded bus invited passengers to travel on the roof of the bus The driver ignored the fact that there were passengers on the roof and tried to overtake a cart As a result, a passenger was hit by a branch of tree, fell down, received injury and died It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus

Yoginder Paul Chowdhury v Durgadas (1972) – The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence

Doctrine of alternative danger –

There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant

Jones v Boyce (1816) – The plaintiff was a passenger of defendant’s coach The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg It was held that the plaintiff would be entitled to recover

Shayam Sunder v State of Rajasthan (1974) – Due to the negligence on the part of the defendants, a truck belonging to them caught fire One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died The defendants were held liable

Negligence in our laws

The Penal Code, 1860 –

s 284 – If anyone has custody of poisonous substance and fails to guard against probable danger is punishable with 6 month or 1000 taka or with both

s 285 If anyone acts rashly or negligently to endanger human life with fire or combustible substance is punishable with 6 month or 1000 taka or with both

s 286 – If anyone acts rashly or negligently to endanger human life with explosive substance is punishable with 6 month or 1000 taka or with both

s 287 – If anyone acts rashly or negligently to endanger human life with any machinery is punishable with 6 month or 1000 taka or with both

s 288 – If anyone in pulling down or repairing any building knowingly or negligently omits to guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or with both

s 289 – If anyone knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life or any probable danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with both

Defamation

Defamation is injury to the reputation of a person If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property A man’s

reputation is his property, and if possible, more valuable, than other property (Dixon v Holden, 1869)

s 499 of the Penal Code Whoever by words either spoken or by visible representations, makes or publishes any imputation concerning any person intending to harm the reputation of him, except in the cases hereinafter excepted, to defame that person

Ten exceptions

1 Imputation of truth which public good requires to be made or published

2 Public conduct of public servants

3 Conduct of any person touching any public question

4 Publication of reports of proceedings of Courts

5 Merits of case decided in Court or conduct of witnesses and others concerned

6 Merits of public performance

7 Censure passed in good faith by person having lawful authority over another

8 Accusation preferred in good faith to authorized person

9 Importation made in good faith by person for protection of his or other’s interests

10 Caution intended for good of person to whom conveyed or for public good

s 500 Punishment for defamation two years or fine or both

s 501 Printing or engraving matter known to be defamatory Whoever prints or engraves any matter, knowing that to be defamatory of any person, shall be punished with two years or fine or both

s 502 Sale of printed or engraved substance containing defamatory matter Whoever sells or offers for sale any printed substance containing defamatory matter knowingly, shall be punished with two years or fine or both

Classification of defamation

Defamation is of two types libel and slander Distinction between the two is

Libel Slander

It is written It is oral

It is permanent It is temporary

It is both tort and offence It is only tort

It is actionable per se It is not actionable per se

Intention is easier to prove Intention is not that easy to prove

Essential elements of defamation

i) The statement must be defamatory

ii) The said statement must refer to the plaintiff

iii) The statement must be published

iv) The statement must be passed by the defendant

Explanation

i) The statement must be defamatory

Defamatory statement is one which tends to injure the reputation of the plaintiff Whether a statement is defamatory or not depends upon how the right thinking members of the society are likely to take it

D P Choudhury v Manjulata (1997) There was publication of a statement in a local daily in Jodhpur that Manjulata went out of her house on the earlier night at 11 p m on the pretext of attending night classes and ran away with a boy named Kamlesh She belonged to a well educated family and was herself also a student of B A class She was 17 years of age The news item was untrue and had been published with utter irresponsibility and without any justification Such publication had resulted in her being ridiculed and affected her marriage prospects The statement being defamatory, the defendants were held liable

The Innuendo

A statement may prima facie be innocent but because of some latent or secondary meaning, it may be considered to be defamatory When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or the secondary meaning, i e innuendo

Intention to defame is not necessary When the words are considered to be defamatory by the persons to whom the statement is published, it is immaterial that the defendants did not know of the facts, is considered to be defamatory

Cassidy v Daily Mirror Newspapers Ltd Mr Cassidy was married to a lady who called herself Mrs Cassidy The defendants published in their newspapers a photograph of Mr Cassidy and Miss ‘X’ with the following words underneath: ‘Mr M Cassidy, the race horse owner, and Miss ‘X’, whose engagement has been announced’ Mrs Cassidy sued the defendants for libel alleging that the innuendo was that Mr Cassidy was not her husband and he lived with her in immoral cohabitation The Court of Appeal held that the innuendo was established

ii) The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him It is immaterial that the defendant did not intend to defame the plaintiff

Newstead v London Express Newspapers Ltd the defendants published an article stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy The story was true of Harold Newstead, a Camberwell barman The action for defamation was brought by another Harold Newstead, a Camberwell barber As the words were considered to be understood as referring to the plaintiff, the defendants were held liable

iii) the statement must be published

Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done, no action for defamation lies

Mahendra Ram v Harnandan Prasad the defendant sent a defamatory letter written in Urdu to the plaintiff The plaintiff did not know Urdu and therefore the was read over to him by third person It was held that the defendant was not liable unless it was proved that at the time of writing the letter in Urdu script, the defendant knew that the Urdu script was not known to the plaintiff and would necessitate reading of the letter by a third person

iv) the statement must be passed by the defendant

Defences:

The defences to an action for defamation are

1 Justification of truth

2 Fair comment

3 Privilege which may be either absolute or qualified

1 Justification of truth

In a civil action for defamation, truth of the defamatory matter is complete defence Under the Penal Code, merely proving that the statement was true is no defence Section 499 requires that besides being true, the imputation must be shown to have been made for public good

2 Fair comment

For this defence it is required:

a) It must be a comment i e an expression of opinion

b) the comment must be fair

c) the matter commented upon must be of public interest

3 Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege

(a) Absolute privilege

i) Parliamentary proceedings Art 78(3) of the Constitution states, a member of Parliament shall not be liable in any Court in respect of anything said, or any vote given, by him in Parliament or in any committee thereof

ii) Judicial proceedings

iii) State communications

(b) Qualified privilege in certain cases, the defence of qualified privilege is also available To avail this defence, the defendant has to prove the following two points:

i) the statement was made on a privileged occasion, i e it was in discharge of duty or protection of an interest

ii) the statement was made without any malice

Trespass

Trespass is of two types: (i) Trespass to body, ii) Trespass to land

Trespass to land or property

Trespass to land means interference with the possession of land without lawful justification In trespass, the interference with the possession is direct and through some tangible object

Trespass is a wrong against possession rather than ownership Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful

Remedies: both judicial and extra judicial Extra judicial remedies are:

i) Re entry

ii) Action for ejectment

iii) Action for mesne profit

iv) Distress damage pheasant to seize trespassing cattle until compensation has been paid

Judicial remedies are mentioned in s 297 and 441 462 of the Penal Code, 1860:

s 297 Trespassing on burial places with intention of wounding the feelings of any person or insulting the religion 1 year, fine, both

s 441 Criminal trespass whoever enters other’s land to commit an offence or to intimidate, insult or annoy

s 442 House trespass Whoever commits criminal trespass by entering into any building, vessel or tent

s 443 Lurking house trespass Whoever commits house trespass having taking precautions to conceal such trespass from the owner

s 444 Lurking house trespass by night Whoever commits lurking house trespass after sunset and before sunrise

s 445 House breaking Whoever enters into a house by making a passage, or with the help of the abettor, or by opening any lock etc

s 446 House breaking by night after sunset and before sunrise

s 447 Punishment for criminal trespass 3 months, 500 taka, both

s 448 Punishment for house trespass 1 year, 1000 taka, both

s 449 House trespass in order to commit offence punishable with death imprisonment for life, or rigorous 10 years, also fine

s 450 House trespass in order to commit offence punishable with imprisonment for life 10 years, also fine

s 451 House trespass in order to commit offence punishable with imprisonment 2 years, also fine

If for committing theft 7 years

s 452 House trespass after preparation for hurt, assault or wrongful restraint 7 years, also fine

s 453 Punishment for lurking house trespass or house breaking 2 years, also fine

s 454 Lurking house trespass or house breaking in order to commit offence punishable with imprisonment 3 years, also fine If for committing theft 10 years

s 455 Lurking house trespass or house breaking after preparation for hurt, assault or wrongful restraint 10 years, also fine

s 456 Punishment for lurking house trespass or house breaking by night 3 years, also fine

s 457 Lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment 5 years, also fine If for committing theft 14 years

s 458 Lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint 14 years, also fine

s 459 Grievous hurt caused whilst committing lurking house trespass or house breaking imprisonment for life, also fine

s 460 All persons jointly concerned in lurking house trespass or house breaking by night punishable where death or grievous hurt caused by one of them for life, also fine

s 461 Dishonestly breaking open receptacle containing property 2 years, fine, both

Trespass to goods: It means direct physical interference with the goods, which are n the plaintiff’s possession, without lawful justification Throwing stones on a car, shooting birds, beating animals or infecting them with disease or chasing animals to make them run away from its owner’s possession are examples of trespass to goods Trespass to goods are actionable per se

Liability

Liability is of two types: (i) Absolute or strict, and (ii) Vicarious

(i) Absolute or strict liability Sometimes a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause the harm, or sometimes he may even have made some positive efforts to avert the same

In Rylands v Fletcher, 1868, the House of Lords laid down the rule recognizing ‘no fault’ liability The liability recognized was ‘strict liability’, i e even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable under the rule

Facts of the case the defendants 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 burst through the shafts and flooded the plaintiff’s coal mines on the adjoining land The defendant did not know of the shafts and had not been negligent although the independent contractors had been Even though the defendant had not been negligent, he was held liable

(ii) Vicarious liability In certain cases, a person is held liable for the act of another person The common example of such liability are

a) Liability of the principal for the tort of his agent

b) Liability of partners of each other’s tort

c) Liability of the master for the tort of his servant

a) Principal and agent Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorized it It is based on the general principle ‘Qui facit per alium facit per se’ which means that the act of an agent is the act of the principal For any act authorized by the principal and done by the agent both of them are liable

Lloyd v Grace, Smith & Co – Mrs Lloyd, who owned two cottages but was not satisfied with the income therefrom, approached the office of Grace, Smith & Co , a firm of solicitors, to consult them about the matter of her property The managing clerk of the company attended her and advised her to sell the two cottages and invest the money in a better way She was asked to sign two documents, which were supposed to be sale deeds In fact, the documents got signed were gift deeds in the name of the managing clerk himself He had acted solely for his personal benefit and without the knowledge of his principal It was held that since the agent was acting in the course of his authority, the principal was liable for the fraud

b) Partners The relationship as between partners is that of principal and agent The rules of the law of agency apply in case of their liability also For the tort committed by any partner in the ordinary course of the business of the firm, all other partners are liable to the same extent as the guilty partner

Hamlyn v Houston & Co One of the two partners of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of contract with his employer (plaintiff) by divulging secrets of the firm were liable for this wrongful act committed by only one of them

c) Master and servant A servant is a person employed by another to do work under the directions and control of his master If a servant does a wrongful act in the course of his employment, the master is liable for it The servant, of course, is also liable The doctrine of liability of the master for act of his servant is based on the maxim ‘respondeat superior’, which means ‘let the principal be liable’

For the liability of the master to arise, the following two essentials are to be present:

i) the tort was committed by the ‘servant’;

ii) the servant committed the tort in the ‘course of his employment’

Nuisance

Nuisance is a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it The interference may be any way, e g noise, vibration, heat, smoke, smell, fumes, water, gas, electricity or disease producing germs

Nuisance is distinguished from trespass

Trespass Nuisance

Interference is direct Interference is consequential

It is interference with a person’s possession of land It is interference with a person’s use of land

The interference is always through some material or tangible objects Nuisance can be committed through the medium of intangible objects

Trespass is actionable per se Special damage has to be proved in order to obtain remedy

Nuisance is of two types:

(i) Public or common nuisance (ii) Private nuisance, or tort of nuisance

i) Public Nuisance

Public nuisance is a crime whereas private nuisance is a civil wrong Public nuisance is interference with the right of public in general and is punishable as an offence For example, obstructing a public way by digging a trench Such obstruction may cause inconvenience to many persons but none can be allowed to bring a civil action for that

ii) Private nuisance

To constitute the tort of nuisance, the following essentials are required to be proved:

a) unreasonable interference

b) Interference is with the use of enjoyment of land

c) Damage

a) unreasonable interference Interference may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of property Every interference is not a nuisance To constitute nuisance, the interference should be unreasonable Ushaben v Bhagya Laxmi Chitra Mandir

b) Interference with the use or enjoyment of land Interference may cause either: (i) injury to the property itself, or (2) injury to comfort or health of occupants of certain property

c) Damage Unlike trespass, which is actionable per se, actual damage is required to be proved in an action for nuisance

Fay v Prentice a cornice of the defendant’s house projected over the plaintiff’s garden It was held that the mere fact that the cornice projected over the plaintiff’s garden raises a presumption of fall of rain water into and damage to the garden and the same need not be proved It was a nuisance In private nuisance, although damage is one of the essentials, the law often presume it

Difference between public nuisance and private nuisance

Public nuisance Private nuisance

It is a crime It is a civil wrong

It is interference with the right of public in general It is interference with the right of an individual or few persons

None is allowed to bring a civil action against it The person whose right is interfered with can bring a civil action against it

Defence

i Prescriptive right to commit nuisance A right to do an act, which would otherwise be a nuisance, may be acquired by prescription If a person has continued with an activity on the land of another person for 12 years or more, he acquires a legal right by prescription, to continue therewith in future also This right is called easement right

ii Statutory authority An act done under the authority of a statute is a complete defence Thus, a railway company authorized to run railway trains on a track is not liable if, in spite of due care, the sparks from the engine set fire to the adjoining property, or the value of the adjoining property is depreciated by the noise, vibrations and smoke by the running of trains

Provisions of nuisance in the Penal Code

There are 11 types of nuisance mentioned in s 268 – s 294A

s 268 Public nuisance A person is guilty of public nuisance whose act or omission causes common injury danger or annoyance to the public A common nuisance is not excused on the ground that it cause some convenience or advantage

s 269 Negligent act likely to spread infection of disease dangerous to life Whoever spreads any infection of disease negligently or unlawfully 6 months, fine, both

s 270 Malignant act likely to spread infection of disease dangerous to life Whoever malignantly does any act to spread the infection of any disease dangerous to life 2 years, fine, both

s 271 Disobedience to quarantine rule 6 months, fine, both

s 272 Adulteration of food or drink intended for sale 6 months, 1000 taka, both

s 273 Sale of noxious food or drink Whoever sells, offers or exposes for sale which has become noxious (poisonous or harmful) 6 months, 1000 taka, both

s 274 Adulteration of drugs Whoever adulterates any drug to lessen the efficiency or makes it noxious that it shall be sold or used 6 months, 1000 taka, both

s 275 Sale of adulterated drugs 6 months, 1000 taka, both

s 276 Sale of drug as a different drug or preparation Whoever sells or issues from a dispensary for medical purposes any drug as a different drug or medical preparation 6 months, 1000 taka, both

s 277 Fouling water of public spring or reservoir 3 months, 500 taka, both

s 278 Making atmosphere noxious to health 500 taka

s 279 Rush driving or riding on a public way Whoever drives in a manner so rash or negligent as to endanger human life, or to cause hurt or injury to others 3 years, 1000 5000 taka, both

s 280 Rash navigation of vessel 6 months, 1000 taka, both

s 281 Exhibition of false light, mark or buoy Whoever exhibits any false light, mark or buoy, intending that such exhibition will mislead any navigator 7 years, fine, both

s 282 Conveying person by water for hire in unsafe or overloaded vessel 6 months, 1000 taka, both

s 283 Danger or obstruction in public way or line of navigation 200 taka

s 284 Negligent conduct with respect to poisonous substance 6 months, 1000 taka, both

s 285 Negligent conduct with respect to fire or combustible matter 6 months, 1000 taka, both

s 286 Negligent conduct with respect to explosive substance 6 months, 1000 taka, both

s 287 Negligent conduct with respect to machinery 6 months, 1000 taka, both

s 288 Negligent conduct with respect to pulling down or repairing buildings 6 months, 1000 taka, both

s 289 Negligent conduct with respect to animal 6 months, 1000 taka, both

s 290 Punishment for public nuisance in case not otherwise provided for Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with 200 taka

s 291 Continuance of nuisance after injunction to discontinue Whoever repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat such nuisance 6 months, fine, both

s 292 Sale, etc of obscene books, etc 3 months, fine, both

s 293 Sale, etc of obscene objects to young person under the age of 21 years 6 months, fine, both

s 294 Obscene acts and songs Whoever to the annoyance of the others does any obscene act in public place or sings, recites or utters obscene songs near any public place 3 months, fine, both

s 294A Keeping lottery office 6 months, fine, both