Restitution under Tort Law. Tort and Restitution Judicial Extra-Judicial.

Restitution under Tort Law

Tort and Restitution

Judicial Extra-Judicial

Tort and Restitution Judicial

Damages Injunction Specific Mandatory Restitution ofContempuous Interim Property Prohibitory (restitutio

Substantial Perpetual in integrum)

Nominal Exemplary or Punitive

Tort and Restitution

Extra-Judicial

Self-Defence Re-entry on Re-caption land of Goods Expulsion of Distress Trespasser Damage Abatement of Feasant

Nuisance

Tort Law and Bailment

Tort and Bailment Section 148, Indian Contract Act, 1872

Bailment is the delivery (express or implied)

of goods by one person (bailor) to another

(bailee) for some purpose upon a contract when purpose is accomplished the goods are

to be returned to the bailor or otherwise dispose of according to his directions

Tort and Bailment e.g., Hire; e.g., Gratuitous loan of goods If bailee damages the goods, then held liable

for breach of his duties created by agreement between the parties

Liability in bailment – dependent upon the contract between the parties whereas liability in tort not dependent upon the contract

Bailee has a duty towards the bailor but in tort duty is towards the public generally

Liability under Tort Law

Liability in Tort Fault based No Fault based

Act Interest of publicor Omission Legal on large scale Injury involved (Strict Liability) Malice in Law Actual (continuous Damage danger against public) Reasonable Foresight eg, Rylands v. Fletcher, (1868) UKHL 1); M C Mehta v. Union of India, AIR 1987 SC 1086

Categories of Tort

1) Intentional2) Unintentional (negligent)3) Strict Liability – Rylands v. Fletcher, (1868) UKHL 1);

4) Absolute Liability – M C Mehta v. Union Of India, AIR 1987 SC 1086

Intentional Tort a) Assault

Assault Assault is an act that creates a

reasonable apprehension in another person of an imminent, harmful, or offensive contact

Unlawful laying of hands on another or an attempt to do some bodily hurt to another, coupled with the ability and intention to do the act

Assault Its essence is in putting a man in instant

fear of violence, so that a reasonable man may have an apprehension in those circumstances that force is going to be used against him.

E.g., pointing an unloaded gun against a person who does not know that it is unloaded.

Ingredients of Assaulta) some gesture or preparation which constituted

threat or force;b) that gesture or preparation was such to cause a

reasonable apprehension of force; andc) ability on the part of the wrong-doer to carry out

the threat into execution immediately Mere verbal threat or threat consisting of

gestures is no assault unless there is apprehension of immediate intention to cause bodily harm

Eg. Throwing water; spitting on a person; mere demonstration of hostility by gestures

Section 351, Indian Penal Code, 1860

“whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation, is about to use criminal force against that person”

Punishment – imprisonment which may extend to 3 months or fine which may extend to Rs 500 or with both

Intentional Tort b) Battery

Battery Battery is the intentional and direct/actual

application of force to another person a harmful or offensive touching of another against

his will done without lawful justification in a rude, angry or

revengeful manner In order to constitute battery, there must be

actual contact, eg. Trespass to person It does not matter whether force used is applied

directly or indirectly to the human body or to anything held in contact with it

eg. If water thrown on a person falls on him as intended; or if the spittle hits him, it is battery

Battery Eg. Whipping a horse when ridden by

someone; snatching a paper from another’s hand; carelessly firing a gun & hitting another

When assault is actually acted upon, it converts into tort of battery

Battery

AssaultAssault

Ingredients of Battery

a)Use of force to another, either to his body, (eg., slapping or pushing) or bringing an object in contact with his body (eg. Throwing water on him); and

b)Use of force was intentional, that is, without any lawful justification

Cherubin Gregory v. State of Bihar,

AIR 1964 SC 205

naked lived electric wire fixed without any warning across the passage of latrine in order to scare away the trespasser which caused death of trespasser

The Supreme Court held that “the trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises.

For example, he must not set man-traps or spring guns


“Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other”

Punishment – imprisonment which may extend to 3 months or fine which may extend to Rs 500 or with both

Examples of Battery

Whipping the horse ridden by someone;

pushing someone intentionally on the road;

throwing stones on someone to hurt him;

throwing stones in the water on road to make

water strike someone’s clothes;

inciting a dog upon someone

Ratios of Decided Cases Hurst v. Pictures Theatres Ltd., (1915) 1 KB 1) valid ticket for cinema theatre, still turned out on a

mistaken belief that he entered without paying – defendant held liable to pay damages for assault & battery

Navabdin v. Sohan Singh, (AIR 2000 HP 143) Himachal Pradesh High Court observed that it is

not necessary for tort of battery that violence or force must have been used.

A person gave heavy pat on the back of the plaintiff & his deformed rib got badly affected

Held liable to pay damages for battery

Difference between the two

Assault Battery

1) An act which causes another person to apprehend the infliction of immediate and unlawful force on his person

(instant fear of use of unlawful force, though no force is actually applied)

1) It is an actual infliction of unlawful force on another person

(application of actual unlawful force)

2) Actual contact is not necessary

2) Actual contact is necessary

Defences for Assault and Battery

Defences for Assault & Battery

1) Self Defence: - Reasonable force used (should not be excessive) to protect one’s person or property is justified

2) Expulsion of Trespasser3) Recapture of Goods: - the rightful owner

should justify the re-take or re-possession of his land, goods or other movable property, which is in wrongful possession of someone who refuses to deliver it upon request

4) Parental or Quasi-Parental Authority: - mild force used for correction of a child/pupil

Defences for Assault & Battery

5) Leave and Licence: - voluntary consent of plaintiff to defendant’s act of assault/battery - based on principle of volenti non fit injuria, i.e., when a person voluntarily exposes himself to risk of injury, he cannot complain of any damage.

6) Legal Process: - physical force used in exercise of some legal duty or performance of a legal function, eg., lathi charge by police 7) Preservation of Public Peace: - reasonable force used by defendant to preserve public peace and prevent violence at a public place

False Imprisonment

False Imprisonment An unjustified act of arresting, imprisoning or

otherwise preventing a person from exercising his right of leaving the place in which he is

It is a total restraint of the liberty of a person for howsoever short time, without lawful justification

may be either physical or mere show of authority

False Imprisonment deprivation of plaintiff’s liberty must be

complete, i.e., must be such to limit his freedom of action in all directions in which he has a right to go

word ‘false’ signifies the unlawful character of the restraint

not necessary to prove any wrongful intention, malice, negligence or improper motive on the part of the defendant

It is also considered a trespass to person either “wrongful restraint” under Section 339,

IPC or “wrongful confinement” under Section 340, IPC, 1860


Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, is said wrongfully to restrain that person. Exception: - The obstruction of a private way over land or water which a person in good faith believes himself to have lawful right to obstruct, is not an offence within the meaning of this section. Punishment – Section 341, IPC – imprisonment for 1 month; fine which may extend to Rs 500 or with both


Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person

Punishment – Section 342, IPC –

imprisonment for 1 year; fine which may

extend to Rs 1000 or with both

Essential Elementsa) Complete deprivation of liberty: - the person confined to a

place should not have any reasonable means of leaving the place

Eg., Bird v. Jones, (1845) 7 QB 742) – bridge, boat race b) Detention must be unlawful (Rudul Shah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh v. J & K, AIR 1986 SC 494)c) Knowledge of restraint – depends upon facts and

circumstances of the case in question - Herring v. Boyle, (149 ER 1126) – student detained in school

due to non-payment of fees; - Meering v. Grahame-white Aviation Co., (1920) 121 LT 44) –

knowledge of imprisonment not essential, wrong could be done even without that

Remedies of False Imprisonment

Remedies1) Self – Help2) Writ of Habeas Corpus: - victim can move to the

High Court under Article 226 or Supreme Court under Article 32, Constitution of India

the unlawfully or falsely detained person is required to be produced by the wrongdoer before the Court

3) Action for Damages – for mental disgrace, humiliation, loss of liberty

Civil & Criminal both remedies lie

Defences of False

Imprisonment

Defences1) Breach of Peace apprehended from plaintiff: – public

authorities can detain him2) Parental or Quasi-Parental Authority

(guardian/teacher) used: - restrain on liberty for correction of a child/pupil

3) Plaintiff insane, lunatic or suffering from any mental disease

4) Defendant assisting the police in apprehending the offender & arrests someone to prevent his escape

5) Arrest or detention ordered by a judicial authority (eg. judge) in exercise of his judicial powers – justified in law

Other Intentional Wrongs

Negligence

Meaning It is a faculty of state of mind or unreasonable conduct,

i.e., conduct which a reasonable man would avoid on the ground that it may result in harm to others

Winfield says that it implies a breach of legal duty to take care which results in damage to the plaintiff

It is an actionable wrong which consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by neglect of which the plaintiff has suffered injury to his person or property

Test of the standard of care is the conduct of a prudent man in the particular situation

Theories of Negligence1) Subjective Theory of Negligence: - supported by

John Austin, Winfield & Salmond – negligence considered as a ‘state of mind’ which gives rise to tortious liability

It is carelessness on the part of defendant which attracts culpability

2) Objective Theory of Negligence: - does not accept negligence as a mere state of mind

Sir Federick Pollock supported this theory Negligence is a breach of duty to take care &

‘taking care’ means to take precautions against harmful results of the consequences of one’s act.

Essential Elements of Negligence1) Defendant owed a legal duty to take care to the plaintiff: - e.g., Donoghue v. Stevenson - snale found in the bear bottle; the court held that there was a breach of legal duty on the part of the manufacturer; liable to pay damages test to decide that whether defendant owes a legal duty is that of ‘reasonable foreseeability’ of the damage caused to the plaintiff the defendant would not be liable if the damage is not proximate or foreseeable e.g. Bourhill v. Young, (1843 AC 92) – nervous shock due to road accident but defendant was held not liable because he did not owe any duty towards the plaintiff

Standard of Care The duty of care expected from defendant is that of

a reasonable or prudent man’s conduct in the circumstances of a particular case

Shivkar Motasingh v. Ram Naresh, AIR 1978 Gujarat 115

Teachers took boys for a picnic at river bank of Sabarmati river. When boys finished their meals, teachers sat for lunch.

In meantime, a boy of 12 years was drowned & killed. His parents sued the school for Negligence.

Gujarat HC held the school liable for negligence of its teachers – they did not act as a reasonable & prudent person would act under those circumstances. School had a duty of care to be owed towards the students

Degree of Care Degree of care expected from a person for his

safety & for safety of others is bound to vary a) according to the facts & circumstances of the

case; b) depending upon the skill of the person in his

profession eg. Degree of care expected from a young boy will

not be the same as that of man of a matured age eg. Driver of a truck should lower down his speed

& stop it, if he sees young children crossing the road

If he fails to observe the degree of care required, he would be held liable for negligence

Essential Elements of Negligence

2) There was a breach of the said legal duty on the part of the defendant eg. cases of medical negligence, where the hospital authorities are under a duty towards their patients to take care Phillips India Ltd. v. Kunju Punnu, AIR 1975 Bom. 306Plaintiff’s son was suffering from small pox but doctor wrongly diagnosed & treated him for veneral disease. His condition deteriorated due to wrong treatment & he died. On being sued – court held that a mistaken diagnosis is not necessarily a negligent diagnosis, hence, suit dismissed

Doctors owe to their patients a duty in tort as well as in contract. It is expected of such a professional man that he should show a fair, reasonable having competent degree of skill; it is not required that he should use the highest degree of skill, nor will he be held to have guaranteed a cure.

Although the standard is a high one, a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of that kind occurs, or

because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment.

The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care?

The medical man must, therefore, exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinarily competent practitioner of his class. If he does so he will have discharged his duty and cannot be held answerable even if the treatment has untoward results.

The burden of proving negligence rests upon the person who asserts it.

In medical negligence cases, it is for the patient (plaintiff) to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill.

There can be no doubt that he may find himself held liable in an action for negligence if he makes a wrong diagnosis and thereby causes injury or damage to his patient

• It follows that a mistaken diagnosis is not necessarily a negligent diagnosis. It was said forty years ago, and the principle still holds good

• He had not applied any pathological test for confirming his diagnosis, because the pathological test was not within easy reach for him

• There was admittedly no epidemic of small pox in December 1961 in Poona.

• It is, therefore, quite possible that neither Dr. Shaikh Suleman nor Dr. Grant could suspect that Gopal, who had already some previous vaccinations could be suffering from small pox because Gopal was in fact not suffering from small-pox.

• It may be that the fulminating smallpox suddenly appeared on December 29, 1961 after the discharge of Gopal from Dr. Grant's Nursing Home

• In any event, it can never be said that any defect or any error in the treatment or diagnosis of Dr. Shaikh Suleman had led to any deterioration of the health of Gopal or to the appearance of the fulminating small-pox which killed him.

• The plaintiff has also not proved by any evidence on record that death of Gopal was caused by anything that was done or omitted to be done by Dr. Shaikh Suleman. In the absence of such proof, even assuming that there were some negligence, the plaintiff cannot succeed.


3) As a consequence thereof, the plaintiff suffered damage: - Plaintiff to prove that defendant owed a duty of care to him & committed breach of that dutyPlaintiff also to prove that he has suffered actual damage due to defendant’s negligenceQuantum of damages depends upon facts & circumstances of a particular case & also on the degree of negligence attributable to the defendant – this all is decided by the courtThe damage or injury should be foreseeable


• Xavier v. State of Tamil Nadu, AIR 1994 Madras High Court 306

• Due to negligence of Municipal Corporation, the son of plaintiff died due to coming in contact with a live electric wire lying naked on the road

• The court ordered Municipal Corporation to pay compensation to the plaintiff

• Intention plays no role in the wrong done

Defences of Negligence

Defences of Negligence1) Act of God or Vis Major: - Incident which occurred

due to forces of nature which are beyond human observation. It is an act of nature as could not, by any amount of human care and skill have been resisted.

eg., extraordinary rainfall; storm; lightening; tempest; earthquake; tsunami etc.

These acts are attributable to the will of God in which human agency has no role to play

Nicholas v. Marsland, (1876) 2 ExD 1) Defendant had a series of artificial lakes on his

land in the construction of which there had been no negligence.

Defences of Negligence

Owing to a most unusual fall of rain, so great, that it could not have been reasonably anticipated, some of the reservoirs burst and carried away four country bridges. It was held that the defendant was not liable, in as much as the water escaped by an act of God

Defences of Negligence• 2) Inevitable Accident: - It is one which could

not possibly be prevented by the exercise of ordinary care, caution, skill or foresight.

• ‘A’ lying drunk on the road – ‘B’ approached in a car, but before he could have seen ‘A’ & avoided the accident, a sheet of newspaper was blown by the wind on his front screen – ‘A’ got injured but fell under defence of inevitable accident

Defences of Negligence3) Contributory Negligence: - It implies that the person (plaintiff) who has suffered damage, is also guilty of some negligence & has contributed towards the damage It is non-exercise of ordinary care, skill by the plaintiff It depends upon the question that whether the plaintiff could have reasonably avoided the consequences of the defendant’s negligence If it is alleged against the plaintiff, it must be proved that he could have reasonably avoided such negligence or danger It does not depend upon breach of any duty between plaintiff & defendant

Defences of Negligence If the defendant shows that the conduct of plaintiff

itself contributed to the injury or harm, defendant still will not be completely absolved from his liability

But the quantum of damages payable by defendant will be diminished proportionately to the plaintiff’s own negligence in the resulting harm

Defendant has been in fact negligent, yet plaintiff has by his own carelessness severed the casual connection between defendant’s negligence & the accident which took place

Defences of Negligence• In Davies v. Mann, (152 Eng. Rep. 588 (1842) -

(commonly called the donkey case) • In this case, the plaintiff succeeded in an action

for damages because the defendant could have avoided the accident had he taken due care and caution

• The court held that the defendant had the last opportunity to avoid the accident by reducing the speed of the jeep but had not taken due care to avoid accident, was liable & could not plead the defence of contributory negligence of the plaintiff

Last Opportunity Rule It means that he who had the last opportunity

of avoiding the accident, inspite of the negligence of the other party

Where a man is part author of his own injury, he cannot call the other party to compensate in full

The liability to compensate & pay damages is in proportion to the degree in which each person is at fault

In other words, both the parties should bear the loss in proportion to their respective degree of fault

This ensures justice to both plaintiff as well as defendant

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