Project Work of Law Of Torts

On
Discharge of Torts by Wavier

Submitted To:Harishchandra salve

Faculty of Law Of Torts

Submitted By :Kumar Vikram Aditya

Roll No. 1023
1st Year B.A. LL.B. (Hons)

Discharge of torts by waiver

TABLE OF CONTENTS

Table of Cases
Introduction
Aims And Objectives
Hypothesis
Research Methodology
Discharge of Torts
Types of Discharge of Torts
Waiver
Limitation
Release
Death of parties
Position in England
The Law Reform (Miscellaneous Provisions) Act, 1934 and the position of
the maxim
Position in India
Accord and Satisfaction
Acquiescence
By Judgement Recovered or Res Judicata
Discharge of Torts by Waiver
Cases Related to Discharge of Torts by Waiver
Conclusion
Bibliography

TABLE OF CASES

INTRODUCTION

If a tort is committed a right of action arises in favour of the injured person. It comes to an
end by one of the seven methods of discharge of torts. Thus the extinction of liability is
known as Discharge of Torts1. The seven methods are:

Death of person which includes fatal accident

Wavier by election

Release

Statutes of Limitation

Accord and Satisfaction

Acquiescence

Judgement Recovered

Discharge of torts by wavier can be used if for the same crime, there are more than one
remedy and the plaintiff selects one remedy and leaves the other, he is said to have waived
the other remedies. He cannot pursue the remedies, which he had given up. Waiver by
election may be either express or implied. Waiving of torts means that only the right to
recover damages for the tort is waived and not the whole of the tort is waived. The phrase,
waive the tort does not mean that the tort itself is waived; it is only the right to recover
damages for the tort committed that is waived. There were no cases that were dealt in this
type of discharge of torts but still there were a few in some of them because most of the types
of discharge of torts are compromised outside the court. Hence, there are no such cases
which are in record although there are some exceptions like death of the person or death by
fatal accident. Some of the other types of discharge of torts are also dealt outside the court
some of them are accord and satisfaction, release and others. There are several cases related
to discharge of torts by waiver some of them is dealt in the research work later are:-

United Australia, Limited v Barclays Bank Limited

Verschures Creameries Ltd v Hull and Netherlands Steamship Co Ltd

Brocklebank, Ld. v. The King

Hardie & Lane, Ld. v. Chiltern

AIMS AND OBJECTIVES

The prime objective of the researcher is to :

Validate the meaning of discharge of torts

To know the various types of torts

Meaning of discharge of torts by wavier

Cases related to discharge of torts by waiver

HYPOTHESIS
If a tort is committed a right of action arises in favour of the injured person. It comes to an
end by one of the following methods. Thus the extinction of liability is known as "Discharge
of Torts". It is of seven types death of person including fatal accident, waiver, release,
limitation, accord and satisfaction, acquiescence, judgement recovered. Discharge of torts by
waiver means if a person has more than two remedy then he can waive one of them. Waiving
of torts means that only the right to recover damages for the torts is waived and not the whole
of tort is waived.

RESEARCH METHODLOGY
The various books, various articles, websites, Law journals, Acts, Treatises, Articles, are
referred for this topic. The sources from which the material for this research collected are
secondary. So the methodology used in the research has been Doctrinal. No non-doctrinal
method has been used by the researcher in this project work.

DISCHARGE OF TORTS
If a tort is committed alright of action arises in favour of the injured person. It comes to an
end by one of the following methods. Thus the extinction of liability is known as "Discharge
of Torts".
1. Death of one of the Parties including Fatal Accidents
2. By Judgement recovered
3. By Limitation
4. By Waiver
5. By Accord and Satisfaction.
6. By Release
7. By Acquiescence
1. Death of one of the Parties:Death of one of the Parties, it means Previously death extinguished all the liabilities of the
person. But after the Law Reforms Act 1934,it was decided that death extinguished only the
liability for personal torts like defamation, assault etc..All the other causes of action survive
to the legal representatives of the deceased.
2. By Judgement recovered:If an action is brought before the court seeking redress for the tort committed and the
judgement is given, the liability for that particular tort comes to an end. If the plaintiff fails,
he cannot go in for another legal proceedings.
3. By Limitation:According to law, for every enforcement of person's right a certain period is fixed. This is
done on the basis that law will not help dormant persons. Moreover, a person will not be able
to establish a defence due to death of witness or loss of evidence, after certain time.

4. By Waiver:By Waiver of Torts, for the same wrong, if there are more than one remedy and the plaintiff
selects one remedy and leaves the others, he is said to have waived the other remedies. He
cannot pursue the remedies, which he had given up. Waiver may be either express or implied.
Waiving of torts means that only the right to recover damages for the torts is waived and not
the whole of tort is waived.
5. By Accord and Satisfaction:If the plaintiff and the defendant agree to settle the liability by valuable consideration, the tort
is discharged. This agreement is called "accord" and the consideration is called "satisfaction".
When the satisfaction is performed the right of action comes to an end.
6. By Release :By release, the injured party releases the wrongdoer by a document, then the liability is
discharged. In accord and satisfaction there is valuable consideration, but in this method there
is no consideration.
7. Acquiescence :When a person who is entitled to enforce a right neglects to do so for a very long time, it is
impliedly inferred that he has waived or abandoned his right. His right of action is taken
away by such undue delay.

TYPES OF DISCHARGE OF TORTS

WAIVER:

Where a man has more than one remedy for a tort, and he elects to pursue one of
them, giving up the other remedies, the other remedies are waived.

The phrase, waive the tort does not mean that the tort itself is waived; it is only the
right to recover damages for the tort committed that is waived.

If out of several civil remedies available for a wrong, the injured person elects to
pursue only one of them, he shall be precluded from pursuing other afterwards.

Waiver is express or implied.

1. What does waiver mean?

Waiver can be defined as a voluntary relinquishment of legal rights that a person or
organisation would normally have if the waiver did not exists. Although waiver is commonly
referred to in contract law and particularly is a concept often related to breach of contract, it
is a broad term which is applicable in other areas of law too.
2. What are some examples of waiver?
In the context of contract law, typical examples of waiver might include losing the right to
insist on goods that are exactly as described; losing the right to see a particular set of terms
enforced in a contract; receiving payment in a form that was different to the form originally
intended i.e. cheque instead of credit card.
3. How does a waiver come into existence?
For a waiver to come into existence, the person who forfeits legal rights must do so in an
informed way, without duress and through words (verbal and written) or through conduct
implying a waiver has come into existence.

4. What is waiver by election?

Waiver by election occurs where a person or organisation makes a choice between several
rights (for example, choice of remedies) and communicates that choice through their conduct
or words. The conduct and words must be of such a nature that it is unequivocal that the
party has chosen to exercise one right and abandon another.
5. What is the difference between waiver and estoppel?
In estoppel, one party represents to the other that it will not exercise certain legal rights. The
party that is represented to relies on this being the case. The key differences are in the
concepts of reliance and detriment. In waiver, one party does not have to rely on a waiver by
the other and suffer if the other party does not do as they said. In estoppel, one party relies on
the representation and the party making the representation is estopped (prevented) from
going back on their word because this would cause detriment to the other party.
LIMITATION:

Action for tort must be brought within the prescribed statutory period; otherwise the
right to sue is barred.

In England, the Limitation Act, 1980 fixes the time during which actions of tort must
be brought. In India, the Indian Limitation Act, 1963 lays down the respective period
within which to sue for different parts.

Section 3 (1) of the Limitation Act 1963, subject to the provisions contained in
Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application
made after the prescribed period shall be dismissed although limitation has not been
set up as a defence.

Caution:

There is a distinction between wrongs which are actionable per se and those which
are actionable only where the plaintiff can prove that he has suffered actual damage.

The period of limitation runs, in the first case, from the time when the wrongful act is
committed; in the second, from the time of the plaintiffs first sustaining actual
injury.

Article 1 to 137 in The Limitation Act 1963 prescribes the periods of Limitation.
Some of them are Stated Below:

Description of Suit

Period of Limitation

For compensation for False Imprisonment

One Year

For Compensation a malicious prosecution

One Year

For compensation for Libel

One Year

For compensation for obstructing a way or a water course

Two Years

For Compensation for diverting a water

Two Years

To Restrain Waste

Three Years

For Compensation of Trespass Upon immovable Property

Three Years

RELEASE:

It is open to an injured party to release the wrong-doer from liability for

compensation.

According to English Law, a release of rights must be supported by consideration or

by a formal document signed, sealed and delivered.

According to Section 63, the Indian Succession Act, consideration is not necessary for
release, and therefore, it would be open to an injured party to release the wrong-doer
without any consideration.

But a release executed under mistake (Hore v. Becher, (1842) 12 Sim 465), or in
ignorance of ones rights (Phelps v. Amcott, (1869) 21 LT 167), or obtained by fraud
(Hirschfield v. S.C. Ry. Co., (1876) 2 QBD 1) is not binding.

DEATH OF PARTIES:
POSITION IN ENGLAND
Under the Law Reform (Miscellaneous Provisions) Act, 1934, on the death of any person all
causes of action subsisting against or vested in him shall survive against or for the benefit of
his estate, except action for Defamation. According to English Common Law, a personal
cause of action against a person came to an end when he died. The rule was contained in the
maxim Actio Personalis Moritur cum Persona, which means that a personal cause of action
dies with the person.

E.I. Ltd. v. Klaus Mittelbachert, AIR 2002 Delhi 124

FACT: - A co-pilot in airlines stayed in Hotel Oberoi Continental, a 5- Star hotel having the
facility of swimming pool. While diving his head hit on the bottom of the swimming pool,
which resulted in serious head injuries to the plaintiff. In the single judge decision the
plaintiff was allowed Rs. 50 Lakhs as Compensation. The above decision was appealed
before the Division Bench. While the appeal was pending, the plaintiff died.
ISSUE:- Whether the rule of discharge of torts by death will be applied here or not ?
JUDGEMENT:- It was held that the plaintiffs suit abated on his death, and therefore, his
legal representatives had no right to pursue the case and could not seek substitution in this
case. The earlier Single Judge decision granting compensation was reversed.
Exceptions
The following exceptions have been recognised to the above rule:
a. Action under contract
The rule that a cause of action came to an end with the death of either of the parties did not
apply to an action under the law of contract. Contractual obligations could be enforced by or
against the legal representatives of the parties to the contract.
In case of contracts of personal service, such as the painting of a picture, however, the legal
representatives could not be bound.
Sections 37 and 40 of the Indian Contract Act also make a similar provision.
S. 37. Obligation of parties to contract: The parties to a contract must either perform or offer to perform, their respective promises,
unless such performance is dispensed with or excused under the provisions of this Act, or of
any other law.
Promise bind the representatives of the promisors in case of the death of such promisors
before performance, unless a contrary intention appears from the contract.

Illustrations:
A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before that
day. As representatives are bound to deliver the goods to B, and B is bound to pay the Rs.
1000 to As representatives.
Mr. A, promises to paint a picture for B by a certain day at a certain price. Mr. A, dies before
the day. The contract cannot be enforced either by As representatives or by B.
S. 40. Person by whom promise is to be performed:
If it appears from the nature of the case that it was the intention of the parties to the contract
that any promise contained in it should be performed by the promisor himself, such promise
must be performed by the promisor. In other case, the promisor or his representatives may
employ a competent person to perform it.
Illustrations:
A promises to pay B a sum of money. A may perform this promise, either by personally
paying the money to B by another, and if a dies before the time appointed for payment, his
representatives must perform the promise, or employ some proper person to do so.
A promises to paint a picture for B. A must perform this promise personally.
b. Unjust Enrichment of tortfeasors estate:
If someone, before his death, wrongfully appropriated the property of another person, the law
did not allow the benefit of that wrongfully appropriated property to pass on to the legal
representatives of the deceased. The person entitled to that property was entitled to bring an
action against the legal representatives of the deceased and to recover such property or its
value.
The idea behind the rule was that only what actually belonged to the deceased should
constitute his estate and his estate should not be unjustly enriched by what does not belong to
him.

The Law Reform (Miscellaneous Provisions) Act, 1934 and the position of the maxim

The Common Law rule has been abrogated by the passing of the Law Reform (Miscellaneous
Provisions) Act, 1934.
Section 1(1) of the Act provides that:
on the death of any person .. all causes of action subsisting against or vested in him shall
survive-against or, as the case may be, for the benefit of his estate.
The Act recognises an exception in respect of cause of action for defamation in which case
the cause of action comes to an end, on the death of either of the parties.
Thus, after the passing of the Law Reform Act, 1934, the general rule is that if a cause of
action comes into existence in the lifetime of the parties, the death of either the plaintiff or
defendant does not affect the cause of action.
Illustration:
If a person is injured in an accident, he may suffer loss in the form of medical expenses, loss
of income during or after confinement as a result of being incapacitated from doing his
normal work, pain and suffering or the reduction in the expectation of his life. He can
obviously bring an action for the same. If, unfortunately he dies, the legal representatives of
the deceased are entitled to pursue the same action.
Rose v. Ford, (1937) A.C. 826
FACT :-A girl of 23 years was severely injured by an accident, caused by the negligence of
the defendant. Two days after the accident, her leg was imputed and four days after the
accident, she died. The father of the girl was entitled to claim compensation for the benefit of
her estate on account of pain and suffering loss of leg and diminution in the expectation of
her life.
ISSUE:- Whether Ford is liable for the Death of the person or the rule of discharge of tort is
applicable here?

JUDGEMENT:- Here the House of Lords held that ford the defendant is liable for the act of
death since it falls under the exception of the rule of discharge of torts by waiver.
FATAL ACCIDENT IN ENGLAND:
The Fatal Accident Act was passed in 1976 which enabled certain dependents of the deceased
to claim compensation for the loss arising to the dependents from such death

POSITION IN INDIA
The maxim was modified quite early by the legislation and has no application where
provisions to the contrary are made in a statute. The Indian Succession Act, enacts that all
causes of action in favour of or against a person survive, except those for defamation, assault,
as defined in the IPC, and other personal injuries not causing the death of the party.

Balbir Singh Makol v. Sir Ganga Ram Hospital, (2001) C.P.J. 45 (N.C.)
FACT: A complaint was filed against a surgeon, whose blunder resulted in the death of the
complainants son. While the complaint was still pending, the surgeon concerned died.
ISSUE: Whether the rule of discharge of torts applicable on Ganga Ram Hospital or not ?

JUDGEMENT: The National Commission applied the rule Actio Personalis Moritur Cum
Persona and held that by the death of surgeon, the right of action had come to an end and the
surgeons legal heirs cannot be held liable in the case.

Nrusingha Charan v. Ratikanta, AIR 1978 Orissa 217

FACT : A money decree was passed against a Hindu father in respect of an amount received
by him by misrepresentation.
ISSUE: Whether the rule of discharge of tort applicable in this case or not ?

JUDGEMENT: It was held that the liability of the father in such a case was personal. It was
not a debt which could be realised from the son under the dictum of moral obligation.
Moreover, the Plaintiffs relief under the law of torts had ended with the death of the father
and the son could not be made liable for the same.
Zargham Abbas v. Hari Chand, AIR 1980 All 259
FACT: The suit for damages for defamation on account of malicious prosecution was decreed
against Zargham Abbas and his son, Ali Abbas. At the appellate stage, Zargham Abbas died.
ISSUE: Whether the rule of discharge of torts by Death is applicable or not?
JUDGEMENT: It was held that if the cause of action does not survive the death of the first
appellant, it is the appeal which would abate and not the suit, and the decree under the appeal
court still be executed against the assets in the hands of the heir. In this case the decree was
jointly against the father and the son. It was further held that the death of the father did not
affect the maintainability of the appeals from the decree.
FATAL ACCIDENT IN INDIA:
The Fatal Accident Act was passed in 1855 which said that if loss is caused to the
representative of a person by his death in an accident, the person at fault has to compensate
them.

ACCORD AND SATISFACTION:

An accord is an agreement between two or more persons, one of whom has a right of
action against the other, that the latter shall render and the former accept some
valuable consideration in substitution for the right of action. Accord indicates the
agreement and satisfaction the consideration which makes it operative.

Just as civil obligation can be discharged by accord and satisfaction, as also tortuous
liability can be discharged by accord and satisfaction.

When an agreement had been reached between the parties, the consideration of which
may have been settled to be paid even in future, the agreement once reached satisfied
the claim, and is a bar to an action in court except of the agreement itself.

But the agreement must be based on the payment of certain thing, otherwise an
agreement, unaccompanied by a consideration, is void and is not a bar to the right of
action.

ACQUIESCENCE:

It is a well settled principle of law that if a person, with full knowledge of his right to
bring an action for tort, neglect to do so for a length of time, it may be inferred that he
has abandoned the right.

BY JUDGEMENT RECOVERED OR RES JUDICATA:

When an action is brought before a tribunal of competent jurisdiction and it proceeds to final
judgement, the original right of action is in any case destroyed. If plaintiff fails, he is stopped
from asserting his alleged right in any other legal proceedings against the same party or his
successors-in-interest. If he succeeds, the original rights in respect of which he sued is
merged in the higher and better right which he obtained by his judgement, even though it be
unsatisfied. This principle of res judicata is based on the rules embodied in the maxim interest
republicae ut sit finits litium which means it is the interest of the state that there should be
an end to the litigation, and nemo debet bis vexari pro una et eadem causa which means it
is a rule of law that a man shall not be twice vexed for one and the same cause.

DISCHARGE OR TORTS BY WAIVER

Waiver is a vague term used in many senses1. It is sometimes used in the sense
of an election (waiver by election),as where a person decides between two
mutually exclusive rights : for instance, where in certain circumstances a plaintiff
may waive a claim in tort and bring a restitutionary claim2, or where a contract
creates alternative liabilities between two different persons; or a contract is made
between the two parties on the basis of estoppels3, or an option right is waived4.
Waiver is also used to describe a situation where a party prevents performances,
or announces that he will refuse performance, or loses an equitable right by laches.
In the law contract , waiver sometimes refer to a variation of a contract supported
by consideration, or it may refer to the act of an innocent contracting party to
affirm the contract after serious breach, or it may describe the election of the
innocent party to abandon all rights in respect of a breach of contract.5

Waivers have also been considered as releases, it having been said that A waiver
is nothing unless it amounts to a release, The courts have also declared that a
waiver to be operative must be supported by an agreement founded on a valuable
consideration. These statements it must be apparent, however, are only applicable
to the express or true waiver and do not form rules for the government of thesocalled implied waivers. It can only be concluded therefore that to support an

express waiver the elements of a contract must be present, and that this waiver is
only supportable by a voluntary intentional release of a fully apprehended right. 6
The essence of a waiver is an intentional relinquishment of a known right.
Waiver thus requires
a strong and clear showing of intent to waive. Just as waiver may not be created by
ambiguous statements, it has been held that waiver may not be created by
negligence or silence. silence is insufficient to establish an intent to waive7

CASES RELATED TO DISCHARGE OF TORTSBY WAIVER

CONCLUSION

BIBLIOGRAPHY