CH-1 NATURE OF TORTS

How the law developed and what was need to create the law?

The common law system was prevalent during those times. There were two types of law
Common law and English law.

Q. Discuss two conflicting opinion given by Winfield and Salmond regarding law of torts?

 A question was posed by Salmond towards the beginning of 19th century should
this branch of law be called as law of tort or law of torts.

In answering these questions both of them gave their understanding what law of tort is according
to them-

 Winfield prefer to call this branch of law as law of tort that is if a person cannot provide
law justification for his injury caused to his neighbour for his lawful conduct then he
shall be liable for law of tort.
 Salmond on the other hand preferred to call it as law of torts. According to him there are
certain no of specific wrongs each labelled as a specific tort just like pigeon holes .If
plantiffs case can fall into any of the already exsting or predominated or labeled pigeon
holes each containing a specific tort only then he shall have a remedy at law. If the
plaintiffs case does not fall in any of the pigeon holes then he shall have no remedy. This
theory is also called as pigeon hole theory.

 Each of these theory has gained some supporters Dr. Jenks in support of Salmond theory
said that – Salmond in his theory has nowhere said that courts are not capable of creating
new tort provided they are substantially similar to pre existing ones. His theory does not
seem to be correct because certain new torts like deceit, negligence, rule in Ryland vs
Fletcher are in no way similar to already existing torts.

 Dr. Glanvillle Williams supported Salmond’s theory and said that pigeon holes are very
much capable being added to and are not in capacious.
Winfield later on modified his own stand and said that both the theory given by Salmond
and him are correct if viewed from different perspective. If we looked at progress and
development which this branch of law has made in past and will continue to make in
future then theory given by Winfield seems to be correct however if we change the
vantage point of looking at this law and solely concentrate upon it as this branch of law at
present without looking at progress it has made in the past or the development it will be
made in future then theory given by Salmond seems to be correct

1
 CONC:- It is for the above noted reason that Winfield book is titled as law of tort and
Salmond book will be titled as a law of torts.

Tort and breach of contract distinguished

1. A breach of contract results of breach of duty undertaken by parties themselves. The
agreement, the violation of which is known as breach of duty is made by parties with
their free consent. ex- if a person undertake to supply a radio and then fail to perform a
obligation which a person have voluntarily undertaken, it is a breach of contract. A tort
on the other hand results from breach of such duties which are not undertaken by parties
themselves but which are imposed by law. ex-we have duty not to assault or defame
anyone or to commit nuisance over others land ,not because we have voluntarily
undertaken these duties, but bcs law imposes such duties on each and everyone.
2. In a contract, the duty is based on privity of contract and each party owes duty only to
other contracting party. ex-if A and B made a contract ,A is having duty only towards B
and similarly B have duty only towards A. That is why a stranger to a contract can’t sue.
In torts duties imposed by law are not towards any specific person or person but towards
world at large. ex-DONOGHUE VS STEVENSON.
3. **in the above case it was shown that manufacturer of a drink owes a duty of care to
every possible consumer of his product. FACT: A went to restaurant with a woman friend
and bought one bottle of ginger beer manufactured by the defendants. The woman
consumed part of the contents but when the remainder was poured into, she observed the
body of decomposed snail in it. The ginger beer bottle being opaque and sealed, the
presence of snail could not have been observed earlier. The woman brought an actions
against the manufacturer for negligence and allegedly that by taking a part of
contaminated drink she had contracted serious illness. The house of lords held that
manufacturer owed her a duty to take care that thr bottle did not contain any noxious
matter injurious to health.
4. Damage is the main remedy in both law of torts and contracts. In breach of contract the
damage is liquidated. Damages are liquidated when the sum payable by way of damage is
predetermined .for ex-by clause in contract. In action of tort the damage is unliquidated.
For ex –when the amount payable is not predetermined and elastic sum of money. But the
court is at liberty to award such sum at discretion as it thinks just.

There may be certain cases which result in both torts and breach of contract. He has a choice
either to sue for breach of contract and commission of tort. ex- due to negligence of driver a
railway passenger is injured, the railway authorities are liable for breach of contract in safe
carriage, there is also tort of negligence which results in damage to passenger. Similarily ,if I
leave a horse wid my neighbourhood allow the horse to die of starvation ,there is breach of
contract in as much as the bailee.

ESSENTIALS OF TORT

2
  There must be a wrongful act or omission of an act which a person was bound to do.
 It must have resulted into injury or legal damage that is violation of legal rights vested in
the plaintiff.

Q. Discuss how social wrong and moral wrongs are different from legal wrong

CH--2 GENERAL DEFENCES

 Whenever a specific tort is committed like defamation, nuisance etc is committed certain
specific defences are available to defendants.
 For ex in cases of defamation, defendant can plead for certain specific defence of truth,
fair and bona fide comment, defence of absolute and qualified privilege.
 The initial burden of proof rests upon plaintiff and he has to establish the essentials of
tortuous wrong before the court of law. once he fulfils this duty the burden of proof shift
upon the defendant and it is now for defendant to establish before court of law and give
reasons for lawful justification for his tortious conduct.
 There are 8 different kinds of general defences which can be pleaded by the defendants.
They are----
o Consent or volenti non fit injuria
o Plaintiff the wrongdoer
o Inevitable accident
o The act of god
o Mistake
o Necessity
o Private defence
o Statutory authority

Volenti non fit injuria

it means that if a person has voluntary given his consent to suffer harm he cannot later on plead
that there has unreasonable interference in his protected interest.

 Harm suffered voluntarily does not constitute legal injury.

 If a person has voluntarily waived or abandoned his right, He has no remedy at law.
 Consent can be given by two way----
1. Expressed-by words or in writing
2. Implied-by conduct
 Mere knowledge doesn’t imply consent.
 The defence of consent predicates two essential----
1. The plaintiff had full knowledge that there is presence of inherent risk.
2. He knowing the same undertakes to suffer the risk or injury

3
  Consent must have been given freely that is without any compulsion, coercion, mistake,
misrepresentation, fraud, etc.
 If consent has been given under any of these vitiating elements then it can’t be said to
be given freely.
 A man can’t be said to be freely willing unless he is in a position to be chosen freely.
 Freedom of choice predicates or presupposes the absence of any feeling of restrain and
constraint.
 In cases of master and servant relationship, the defence of consent has to be applied with
full caution or with extreme care.

CASE LAWS
 HALL v. BROOKLAND AUTO RACING CLUB, - the plaintiff was a spectator at
a motor ace race being held at Brooklannds on a track owned by the defendant
company, during the raece, there wasa collision between the two cars one of which
was thrown among the spectators, therby injuring the plaintiff. It was held that
plaintiff impliedly took the risk of such injury, the danger being inherent in the
sport which any spectator could fore see, the defendant was not liable.

 WOOLDRIDGE VS SUMNER- plaintiff was a photographer taking photographs at

a horse show while he was standing at boundary of arena. One of the horses
belonging to defendant, rounded the bend too fast. As the horse galloped furiously,
the plaintiff was frightened and he fell into horse’s course and there he was seriously
injured by the galloping horse. The horse in question won the competition. It was
held that since the defendant had taken due care, they were not liable. The duty of
defendant was duty of care rather than duty of skill. The spectator in such a game or
competition took a risk of such damage even though there have been no error of
judgment or lapse of skill.

THOMAS v. QUATERMAINE-plaintiff an employee in defendant’s brewery was

trying to remove a lid from boiling vat. The lid was struck and by the plaintiffs extra
pulls to it, came off suddenly and the plaintiff fell back into the cooling vat which
contained scalding liquid. The plaintiff was severely injured. The majority of court of
appeal held that the defendant was not liable because the danger was visible and the
plaintiff appreciated and voluntarily encountered the same.

MERE KNOWLEDGE DOES NOT IMPLY ASSENT

For the maxim volenti non fit injuria to apply, two points have to be proved:-

1. The plaintiff knew that risk is there.

2. He, knowing he same, agreed to suffer the same the harm.

4
 Limitation to the principle of volenti non fit injuria
 Rescue cases are to be exception or limitation to the doctrine of volenti non fit injuria.
 When a person voluntary encounters a risk to save the life of others from eminent
danger or threat posed created by wrongful act of defendant, he can’t be met with the
defence of volenti non fit injuria.
 It would be a strange and outrageous at law if law were to penalized, then efforts of
rescuer by depriving him of remedy at law.
 The rights of rescuer are independent right and are not derived from that of victim.
 The victim may still be guilty of contributory negligence but rescuer may still fight suit
for injuries sustained by him and risk posed by him.
 Another question which generally arises in rescue cases is whether the act of rescuer is
novus actus interveniens ie a new intervening act that break the d chain of causation
such that initial negligence of defendant become remote cause for the injury sustained
by rescuer.
 If the injury that has been sustained by plaintiff is a proximate consequence of the
wrongful act of defendant then the defendant can be made liable.
 If the wrongful act of defendant is the proximate cause of injury sustained by plaintiff
then the defendant shall be liable.
 If the wrongful act of defendant is the remote cause for injury sustained by plaintiff then
defendant shall not be made liable.
 Thus if the defendant could have reasonably foreseen that his wrongful act, may cause
injury to the plaintiff he shall be liable.
 If the defendant could have reasonably foreseen that his negligence would create a
situation where somebody can come forward for rescue then wrongful act of defendant
continues to remain the proximate cause of the injury sustained buy rescuer.
 It is a principle of law of contract that a person whose own hands are tainted with
illegality can’t claim justice and equity before the court. It is based upon latin maxim ex
turpi causa non oritur actio Which means from an immoral cause no action arises.
 It is a little doubtful whether same defence can be pleaded by defendant to escape
liability ie at a the time when defendant was involved in some wrongful act the plaintiff
was also engaged in doing something wrongful.
 Under the law of torts merely bcs plaintiff is a wrong doer shall not disentitle him to
bring an action against the defendant for the damage caused to him from the wrongful
conduct of the defendant.
 If the plantiff own wrongful act is sole determining factor behind the wrong which is
suffered by him. He shall have no cause of action.
 When the authority given by statute is conditional it means dat the authorised act can be
done without causing nuisance or harm to the public at large.

5
  In absolute authority there is no liability upon state even though nuisance or other harm
is caused to the public.

** RESCUE CASES CASE LAWS

 HAYNES VS HARWOOD-defendants servant left two horses van unattended in
a street. a boy threw a stone on the horse and they bolted, causing grave danger
to women and children on street. A police constable who was on duty inside a
nearby police station on seeing the same managed to stop the horse, but in doing
so ,he himself suffered injuries . it being a ‘rescue cases’ . the defence of volenti
non fit injuria was not accepted and the defendents were held liable.
 BAKER VS T.E. HOPKINSAND SON- in this casen due to employers
negligence a well was filled with poisonous fumes of a petrol driven pump and
two of his workmen were overcome by fumes of apetrol driven pump and two
of his workmen were overcomwe by fumes. Dr. Baker was called but he was
told not ot enter the well in view of risk involved. In spite of the that, Dr. Baker
was preferred to go into the well with a view to make an attempt to help the two
workmen already inside the well. He tied a rope around himself and went inside,
while two women held the rope at the top. The dr was himself overcome by the
fumes. He was pulled from the well and taken to the hospital. He, however, died
in the way to the hospital. The two workmen inside the well had already died.
The doctor’s widow sued the workmen’s employer to claim compensation for
her husband’s death. The defendant pleaded volenti non fit injuria . it was held
that the act of rescuer was natural and probable consequence of the defendants
wrongful act which the latter could have foreseen, and, therefore, the defence of
volenti non fit injuria was available. The defendants were thus, held liable.
-

PLANTIFF THE WRONGDOER

Under law of contracts, one of the principles is that no court will aid a person who found his
cause of action upon an immoral or an illegal act. The maxim is ex turpi causa non oritur action
which means, from an immoral cause no action arises. It means that if the basis of action of the
plaintiff is an unlawful contract, he will not, in general, succeed to his action.

However, in torts it is doubtful whether the defendant can take such a defence and escape
liability by pleading that at the time of defendant’s wrongful act, the plaintiff was also engaged
in doing something wrongful. The principle seems to be that mere facts that the plaintiff was a
wrongdoer doesnot disentitle him from recovering from the defendants for latter’s wrongful act.
The plaintiff may have to answer for his wrongful act but he does not forfeit his right of action
for harm suffered.

6
  BIRD VS HOLBROOK-plaintiff a trespasser over the defendants land was entitled to
claim compensation for injury caused by a spring gun set by defendant without a notice
in his garden.HELD: when plaintiff himself is a wrongdoer, he is not disabled from
recovering in tort “unless some unlawful act or conduct on his own part is connected with
the harm suffered by him as part of the same transaction. Thus, it has to be seen what is
connection between the plaintiff wrongful ac6t and harm suffered by him. If his own act
is the determining cause of the harm suffered by him,he has no cause of action.

INEVITABLE ACCIDENT
Accident means an unexpected injury and if the same could not have been forrseen and
avoided, in spite of reasonable care on the part of defendant it is inevitable accident.

STANLEY VS POWELL-the plaintiff and defendant who were member of a shooting party went
for pheasant shooting. The defendant fired at pheasant but shot from his gun glanced off an oak
tree and injured plantiff.it was held that injury was accidental and defendant was not liable.

ACT OF GOD

 NICHOLAS VS MARSHLAND-defendant has created some artificial lakes bu damming

some natural streams. Once therer was extraordinary rainfallstated to be heaviest in
human memory.
 KALULAL VS. HEMCHAND-the wall of a building collapse on the day when there was
rainfall of 2.66 inches.

PRIVATE DEFENCE
 BIRD VS HOLBROOK
 RAMANUJA MUDALI VS M. GANAGAN-the defendant the land owner has
laid some live electric wires on land.the plantiff while passing at 10 pm in order to
reach his land.

MISTAKE
 HICKES VS FAULKNER,1881-

NECCESSITY

an act causing damge, if done under under necessity to prevent a greater evil is not actionable
even though harm was caused intentionally. Necessity should be distinguished from private
defence. In necessity, there is an infliction of harm on an innocent person whereas in private
defence harm is caused to an plaintiff who himself the wrong doer.

7
  COPE VS SHARPE-the defendant enter plantiff land to prevent spread of fire to the
adjoining land over which defendant master has shooting rights.

STATUTORY AUTHORITY
 ABSOLUTE AND CONDITIONAL AUTHORITY
 METROPOLITAN ASYLUM DISTRICT VS. HILL-the appellant a hospital authority
were empowered to set up a small pox hospital.

CH-3 CAPACITY TO SUE

Under the common law their existed a principle the husband and wife are treated as a single
person this doctrine reduces status of of women to a inferior or subordinate position as a result of
which some abnormalities had crept in the society.

1. The husband could not sue the wife for tort committed by her.
2. The wife could not sue the husband for torts committed by him.
3. The married woman could not sue the 3rd party for tort committed by him unless her
husband was made co plaintiff.
4. She could also not be sued for tort committed by her husband was made a co defendant.

These abnormalities were removed and abolished by

 Married woman property act 1882
 Law reforms act 1835

 In the year 1962 married woman the parliament of England enactead law reforms
husband and wife act 1962 which abolished common lqaw principle that husband
wife should be trated single entity.subsequent to this enactment husband and wife
could file a suit independtly against each other.
 Position in india-the marital statues of Hindus and muslin india are always
governed by personal laws and the britishers never really interferd into the
personal laws of Indians.
 The personal alws in india were such dat marriage under personal law never
affected the capacity of the parties to sue or be sued for an action under law of
torts.it also does not provide an y protection to any spouse for any tortuous act
committed by 1 against the other
 The anamolies of common law never existed in India and even if it would have
been existed it would not have survived the impact of art 14 of the Indian

8
 constitution which provides protection against arbitraty laws and gurantees equal
protection and equal rits to ppl irrerspective of their danger.
 Minority is nota adefence under law of torts.a minor can very well be sued for tort
commmitted by him in same manner and to same extent as an adult.
 He can also a file a suit for tort wid only procedural difference dat suits shall be
brought by his next friend.

Case laws

JOHNSONS VS PIE

 BURNARD VS HAGGIS

JENNIGS VS RUNDALL

In England in year 1870 the forfeitujure actv was enancted according to which a
convicted person would not bring an action for injury tto his property.
This anomaly was removed by criminal justice act 1948
The convicted person in England can thus bring an action infrigment of his civil rits
inspite of curtail entg of his personal liberty.
In india a convicted person is not denuded of all his fundamental feerdom b y reason of
conviction. The courts being custodian and guardian of rits and liberty of the convicted
persons just like citizens
Certain fundamental rits like---
1. Rit to personal liberty.
2. Rit to move freely at any palce of one choice.

Rit tio practice an y profession,trade,occupation of ones choice.

These are not given to prisioners.

However the prisioner is able to hold on to many fundamental freedom like

1.Rit to hold acquire dispose of property.
2.Rit to life under art 21. Apart from the above rits the prisioners is also enabled to ex 3
other very closely related rits like .

1.rit to access to courts

2.rit to seek legal advise.

9
3. rit to have a confidential conversion wid ones legal advisor under seal of legal professional
priviledge.

Thus conviction of person does notg draw an iron cutain between the convict and his legal rits
also does not reduce him to a non person.

CORPORATION

POULTON VS.LONDON AND SOUTH WESTERN RAILAWSY COMPANY.

TORTFEASOR

Tortfeasor is a person who has committed tort or against whom commission of tort is said to be
proved

1. independent tortfeasor
2. Joint tort-
Independent tortfeasr --------------
 when two or more person acting independently cause sum damage to another they are
refferd to as tortfeasor.
 There is a mere similarity of design and no concerted act .
 The damage caused by dem could b same or distinct and seperable
 Liability in case of independent tortfeasor is several . ie dere can as many cause of action
as dere r no of tortfeasor .

 If damage caused by indepemdemt tortfeasor is distict each is liable only only for damge
attributed to his act.
 Where damage caused by independent tortfeasor is same or indivisible judgement
obtained against 1 of the independent tortfeasor does nt put an end to cause of action and
the –plantiff can file subsequent soots to claim compensation until his claim is
satisfied.thus,in case of indivisible or same damage liability of independent tortfeasor is
calculated in same manner as is done in joint tortfeasor.

Joint tortfeasor

10
Whoever aids, abets. directs ,councils in the commission of wrongful act is referred to as
joint tort feasor .there is concerted act pre meeting of mind and joint effort on their part to
commit wrongful act. the damage caused by them is deemed to be same damage.

Few ex are--two or more persons acting jointly ,master and servant relationship ,partners in
partnership firm, principle and agent.

 Liability of joint tortfeasor is joint as well several which means that plantiff can
file a suit againt 1 of them,some of them, all of dem.
 If plantiff decides to file a suit against 1 of them he m ay claim entire amount of
compenstion from him .
 The mere omission on part of plantiff to sue others doesnt disentitle him from
claiming entire compensation from d one who has been sued.
 The once who have been sued cannot insist dat others should be sued as well .
The abnormality with respect to liability of joint tortfesasors in common
law----------------------
 The common law justice system from serious anamoly wid respect to liability of
joint tortfeasors.
 Even though the liability of joint tortfeasors was said to bged joint and several ie
plantiff could file a suit agaimngst 1 of the some of dem all of dem-the successive
filling of suit was barred because it was firmly believed that in case of joint
tortfeasprs plantiff hyad only cause of action. Thus he was not permiktted to fiule
a subsequent suit. These system proved to be unjust for the palntiff in situation
where joint tortfeasors sued by him wsas insolventg,bankruot, or didn’t have even
money or asst to pay f0por entire compensation which was claimed by the
plantiff.
 This anomaly was abolished by law reform act 1935 which allowed for successive
filling of suits by plantiff .
 The law reforms act 1935 ahd imposed a restriction according to which if
successive suits are filled, den amount of compensation recoverable in aggregrate
shall not exceed the amount of compensation granted by court in judgment first
given.
 The object of this restriction was to prevent avoid vexatious or frivolous petitions.
 This provision has been removed by civil liability act 1978.


Position in india

11
  The Allahabad high cortu in case of naval kishore vs rameshwaram that court should be
guided b y principles of justice equity nd good conscience and therefore there is no point
in following situation that existed prior to 1935.
 Also the pricip-loe existing or restriction imposed by law reforms act 1935 has been
abolished and uprooted by then civil liability act of 1978. So dere is no point in following
such unjust principle which have been uprooted in the country of its very origin.

The right of contribution between joint tortfeasors--------

 The liability in case of joint tortfeasor iks joint as well as several which means that
plantiff can sue 1 of them, some of dem, all of dem,
 The plantiff can sue 1 of them and can recover entire compensation frm him
 The question which arises in such a situation is can joint tortfeasor who has paid in exces
of his share claim a contribution frm others
 The answer to this question was given in negative in case of Merry weather vs Nixon –
contribution between joint tortfeasor was not to be followed on ground that a person who
is presumed to have committed a wrongful act cant be allowed to plead for justice and
equity to be done to him . he who comes to the court must come wid clean hands and his
own hands must not be tainted wid injustice and inequity.
 This was followed for 136 yrs until law reforms act 1935 was followed and then this rule
was ablished
 It was abolished bcz the roule was considered to be unjust as entire wrong of ding
wrongful actg would fall upon 1 jointtortfeasor who had been chosen to be sued by
plantiff. merely bcz plantiff had omitted to sue some of the joint tortfeasors they would
escape their liability .
 Thus right of contribution bn joint tortfeasors is allowed.

Judicial officer protection act 1850

 It grants absolute protection to judicial officers for any act done or order given during his
capacity as an officer of the state . this is to enable the judicial officer to administer law
without any fear of unwarranted litigation against him.
 It is necessary to grant such a judicial privilege. In the interest of the larger section of
society and does not act as a protection to corrupt and malicious judges.
 It is rather a protection to public so that the faith and respect in the justice delivery
system is not hampered and is restored. such a protection is also granted to judges where
he has exceeded his jurisdiction provided dat he honestly believed that he had
jurisdiction to decide case

12
 CH-6 REMOTENESS OF DAMAGE

 Whenever a wrongful act is done by defendant d q of remoteness of damage arises.

 The consequence of wrongful act of defendant can be endless but d defendant cannot be
made liable ad infinite ie for all the consequence arising from his wrongful conduct. It is
necessary to draw a line beyond which liability cannot be imposed upon him.
 The question which arises is where to draw this line ?
 To answer this question one must see whether the damage caused to the plantiff is too
remote a consequence of the wrongful act of defendant in which case defendant shall not
be made liable .
 If the wrongful act of defendant is the proximate cause for the loss or damge suffered by
the plantiff then only the defendant shall be liable.

CASE LAWS

 Scott vs. shepherd

 Lynch vs nurdin – own
 Smith vs London and south western railway company
 Ray polymess v furness
 Wagon mound case
 1870-smith vs London north western railway company
 1921- rey polymesse vs furness
 1961 – wagon mound

Why test of reasonable forseeeblity was considered to be appropriate than test of directness

**Give brief history of 150 where test of foresseblity was followed than rejected in railway
company heap and grass case and some more case and then again in wagon mound cased
foreseeblity was followed

The judicial committee of privy council in case of overseas tankship ltd vs morts dock and
engineering company ltd also called as wagon mound case held that test of reasonable
foreseeblity is better test to fix liability upon the defendant the polemes rule or the test of
directness was held to be incorredct, illogical and unjust as it doesnot seem to be in consonance
wid current ideas of justice,and morality that for a slight or venial negligence act which may
result in some trivial damage foreseeable damage to the plantiff, the doer of the act shall be made
liable for all the consequences however unforceale and grave so long as they can be said to be
arising from his wrongful act .

CH-4 VICARIOUS LIABILTY

13
The common law principle states that a person shd be made liable fro wrongful acts commited by
him. So, thw question arises on what grounds liability shd be imposed upon masters for tortuous
wrongs committed by his servant. Reason are--

 Historical – historically, servants/slaves never had an independent personality or status of

their own. Their personality was always amalgamated with that of their masters.
 Public policy- in the larger interest of the public it is necessary that liability is imposed
upon someone who can pay for the damage. So that nobody is left remediless. Also, a
master is deemed to be having deeper pocket and greater monetary capacity than the
servants to pay for the loss or damage
 The third reason is contained in two latin maxim- 1. Respondeat superior- let the master
be liable.
2.Qui facit per alium per se- he who does an act through another is deemed in law to done
it himself.

A person can be made liable form the tortuous act comitetd by another in three different
ways-
1. When he has abetted in commisson of wrongful act.
2. Liability by relation. When d relationship bn two individual is that of
responsibility. Ex- principal agent
3. Liability by ratification. When a person ahs authorize the commission of
wrongful act or has subsequent its commission ratified it wid full knowledge of
the nature of the wrongful act and while ratifying he meant to take it upon himself
the benefit as well as regularities that may arise from it.

LIABILITY IN CASE OF RELATIONSHIP

Liability in case of masters is considered to be – servants relationship is considered to be more

wonderous than his liability in the case of master and independent contractors. This is bcs d
master employs d servant undera a contract of service whereas he employee a contractor under a
contract of services.

There are 4 factors found in contract of service

1. Masters like to select d servant

2. Masters rit to dismiss
3. Payment of wages and remuneration
4. Masters rit to control d method of d doing work.

The masters rit to control d manner of doing the work is not found in master and independent
contractors relationship.

14
Thus, we find that generally a master can be made liable for tortuous act of his servant if done
during course of his employment but generally liability cannot be imposed upon him for the
tortious acts of independent contractors.

TEST OF CONTROL

 The test of control was based upon social condition of earlier age and was well suited to
govern simpler relationship lik those bn householder and domestic servant, farmer and
agricultural labourer,factory owner and unskilled worker.
 The test of control breaks down when applied to skilled and professional work. And
therefore cannt be regarded as a decisive test.
the supreme court in case dharangdhara chemical works ltd vs state of suararshtra laid
down that----
1. The existence of right in the master to control and supervise the execution of work done
by servant is prima facie case but it cant be regarded as test of universal application and
sole determining test.
2. This is bcs nature of control may vary frm 1 business to another.
3. Sometimes it may not be necessary to be proved dat d employer exercised control over
the work done by employee .
4. There could be certain contracts in which the master could not control the manner in
which the work was done by servant.

In montreal vs montreal locomotive works ltd.---

It was held that in more complex society that we live in today several other factors have
to be looked into like *control,*ownership of tools,*chance of profits,*risk of loss.
Thus, even though d test of control is a prima facie test but other factors like whether the
man performing task provide his own equipment , whether he hire his own helpers, what
is d degree of his risk that he undertakes, what is degree of responsibility for invest and
management that he has and whether and how far he has a chance of benefitting from
the sound management in the performance of the task.

In the case of *Mersey docks and harbor board vs. coggins, Griffith [Liverpool] ltd. , the
house of lords laid down certain guidelines wich are imp in determining the question of
vicarious liability where transfer of service of the servant has been made frm 1 employer
to another.
1. Such a transfer must be made with his express and implied consent
2. It is not correct to infer or to say that change of the master has been effected merely
bcs a contract has been signed bn original and new employer for declaring dat d
servant shall be working for new employer for a particular period of time.

15
 3. The most satisfactory test by which one can ascertain who the employer is for the
particular period of time is to ask the question – who is entitle to tell the employee the
manner in which the work is to done.
4. If someone apart from original employer is esponsible for giving such orders he shall
be liable.
5. In this case the court held that because the servant is driving a mechanical device like
a crane and is responsible for its safe keeping it can be inferred that he was working
under the direction given by original employer and was working under the discretion
vested in him by original employer. Therefore Original employer was made liable
vicariously.

Rambaran vs gurucharan

Generally ownership of vehicle raises presumption that person driving vehicle at time of accident
was agent of the owner. But this presumption can be rebutted by proving in the court that person
driving vehicle has general permission of owner to use the vehicle for his own purpose.

In order to fix liability on the master for negligence of servant it is necessary to prove that

1. The relationship between them is that of master and servant. The tortuous act done by
servant was done in course of employment.
2. In order to establish the institution of agency it is essential that-
 The driver was using the car with the permission or at the request of the owner that
he was doing the duty that was entrusted to him by the owner.

Close Connection Test-

 However in some situations uncertainty arises bcs the act of employed can’t be said
to be approved by the master for situations like this salmond has propounded a test
called as salmond or close connection test.
 Close connection test
 Whether the act of servant was approved or authorized by the master
 Whether it was unauthorized mode of doing an act authorised by the master.

UNAUTHORISED MODE OF DOING AN ACT

 Whether employer did something which was so closely connected wid d normal duty that
employer can be held be liable vicariously.
 The injury done must involve a risk so inherent in or characteristic of the employers
business that they should bare the loss.

*Morris vs C W martin and sons ltd.

16
Close Connection and The Test of Vicarious Liability in Indian Law

Every first-year law student in Indian and English law schools is taught the famous ‘Salmond’
test of ‘course of employment’ for the purposes of vicarious liability in tort: was the employee’s
wrongful act either actually authorised by the master or an unauthorised mode of doing an
authorised act? This test survived for many years and works well in the vast majority of cases.
But like other statements of high authority of a similar nature—such as the contract remoteness
rule in Hadley v Baxendale  and the tort remoteness rule in the Wagon Mound—it appears to
produce unsatisfactory results in difficult cases, fuelling calls for a more precise analysis of the
basis of liability. In each instance the invitation has been taken up in recent years: the House of
Lords reformulated the Salmond rule in Lister v Hesley Hall, and tort and contract remoteness
in SAAMCO and the Achilleas.
The Indian courts are yet to endorse Lister v Hesley Hall, although the Allahabad High Court has
cited it with approval in a criminal case (see Chhaya Khanna v State of UP (2006) 3 ACR 3279).
So the Salmond test is alive and well in India. But the question about the scope of that test is
certain to arise in Indian law in the near future and the recent decision of the Court of Appeal in
Mohamud v WM Morrison Supermarkets plc is a good illustration of why it makes a difference
to the outcome of cases.

On 15 March 2008, Mr Mohamud stopped at a petrol station in Birmingham. The petrol station
had a small convenience store owned by the defendant supermarket.  On duty at the store that
night was Mr Amjad Khan, who was employed as an assistant by WM Morrison to keep the store
in good order. Mr Mohamud entered the store and politely asked Mr Khan if he could print some
documents from a USB stick. For no apparent reason, Mr Khan launched what the judge at first
instance described as a “brutal and unprovoked” attack on Mr Mohamud, causing serious
physical and psychological injuries. Mr Mohamud sought to hold the defendant vicariously liable
for this act. At first instance, Mr Recorder Khangure QC dismissed the claim on the ground that
the Lister test of ‘sufficiently close connection’ was not satisfied, as Mr Khan’s job did not carry
any inherent risk of conflict or violence or even require him to maintain order or control
aggressive customers.

17
Although the Court of Appeal accepted that this was a tragic and entirely unjustified attack, it
agreed with the Recorder and unanimously dismissed the appeal. Lord Justice Treacy, who
delivered the leading judgment, makes the point that central to many of the difficult cases on
vicarious liability is the proposition that the mere interaction of an employee with the claimant is
not enough to trigger vicarious liability. Something more is required. The cases do not clearly
identify what that ‘something more’ is but Lord Justice Treacy suggests that the answer lies
in the nature of the employee’s duty: for example, an assault on a customer by a doorman is more
likely to trigger vicarious liability than an assault by a finance manager, since the duties
entrusted by an employer to the doorman inherently involve the potential for conflict while the
duties entrusted to a finance manager does not. One can see why this might be important: the
justification for the course of employment test is, after all, that it is necessary to find a
connection between the wrong and the employer and what the employer requires the employee to
do  must inform that analysis. As his Lordship explains:

All of those cases involved a finding of liability in situations where the employee was
given duties involving the clear possibility of confrontation and the use of force or was placed in
a situation where an outbreak of violence was likely. They are to be contrasted with the current
case, where on the judge’s findings, Mr Khan’s duties were circumscribed and where, indeed, his
instructions were not to engage in any form of confrontation with a customer, even an angry one.

[emphasis mine]

Lord Justice Christopher Clarke emphasises that the question is not simply it is ‘just and fair’ to
hold WM Morrison vicariously liable in this case: if it were, WM Morrison would probably be
liable as the assault occurred on its premises, by its employee and during work hours. The test is
not ‘justice and fairness’. The test is that of ‘sufficiently close connection’ and ‘justice and
fairness’ is not at large, but informed by the case law on that test. Accordingly: If
the question was simply whether it would be fair and just for Morrisons to be required to
compensate Mr Mohamud for the injuries that he suffered, there would be strong grounds for
saying that they should…That is not however, the test. The question is whether the connection
between the assault and the employment was sufficiently close to make it fair and just to hold the
employer vicariously liable. The fact that Mr Khan’s job included interaction with the
public does not, by itself, provide that connection… If Morrisons were liable it would mean that

18
in practically every case where an employee was required to engage with the public, his
employer would be liable for any assault which followed on from such an engagement. That
appears to me to be a step too far.

I agree with my Lord that, for the reasons he has given and in the light of the cases to which he
has referred, something closer than a duty to engage with customers is required. The cases
illustrate circumstances which can afford a close enough connection between assault and
employment.  In the case of this assault those circumstances are absent. The work of kiosk
employee carried with it no special risk of violence being used against customers; nor have we
any reason to suppose that assaults of this type and in these circumstances are other than
rare events.

Lady Justice Arden reached the same conclusion but formulated the ‘something more’ in slightly
different terms: according to her Ladyship (following in this respect the analysis of the editors of
Clerk and Lindsell), the employee must have been given discretion to act in a certain way and
the use of violence must be ‘reasonably incidental’ to the exercise of that discretion. The
difficulty with this formulation is that ‘reasonably incidental’ is not any more precise than the
Salmond test.

On this analysis, in many cases, the close connection required for vicarious liability for
intentional torts committed by an employee is to be found in the fact that the employee has a
discretion to act which his employer has given him and the assault occurs in the course of or as
reasonably incidental to exercising that discretion.  Thus, in Gravil v Carrol [2008] ICR 1222,
there was a sufficient connection to make the employer liable for a player throwing a punch
following a scrum because this act was on the evidence a reasonably incidental risk to playing
rugby which the employee was employed to do.

The Indian law on vicarious liability has a long history: initially, the Indian courts were attracted
by the proposition (once popular in England) that there can be no vicarious liability unless the
master benefits from the employee’s wrong but the Bombay High Court held in the 1950s that
this was no longer good law (see Dinbai Wadia  v Farukh Mobedjna). Another objection was
that the principal cannot be vicariously liable for his agent or employee’s fraud: this, too, fell by
the wayside, with the courts confirming that vicarious liability works in exactly the same way

19
(see, for example, the judgment of Mr Justice Venkatadri in Alamelu Ammal), except that the
claimant
must show that the representation was within ostensible authority, for otherwise there can be no
reliance (on which see Mihir’s analysis of the cases culminating in Kelly v Fraser).
The key question that remains unresolved in Indian law is the appropriate test of ‘course of
employment’ and one hopes that the Supreme Court will provide guidance soon.

Vicarious Liability: Broadening the Close Connection Test

Overview of the case

The Supreme Court agreed with the County Court and Court of Appeal that the test for the
vicarious liability of an employer for an act of its employee was whether there was a close
connection between what the employee was employed to do and the employee’s tortious
conduct. However, applying that test in the instant case, it held that the lower courts had
incorrectly found that there was no close connection.

What were the main issues arising?

The case raised the question of when an employer will be vicariously liable for intentional
wrongdoing by its employees.

The appellant had been a customer at a petrol station operated by the respondent when he was
violently attacked by a sales assistant. The respondent denied that it was vicariously liable for the
attack because the sales assistant’s actions were not closely related to his employment duties.

The County Court and the Court of Appeal accepted these arguments. They applied the ‘close
connection’ test for vicarious liability laid down by the House of Lords in Lister v Hesley Hall
Ltd [2001] UKHL 22 and found that it was absent in this case. Although the Court of Appeal
recognised that the application of the narrow doctrine of vicarious liability gave rise to a possible
injustice in this case, it stated:

‘Our law is not yet at a stage where the mere fact of contact between a sales assistant and a
customer, which is plainly authorised by an employer, is of itself sufficient to fix the employer
with vicarious liability.’

20
The question before the Supreme Court was whether the test for vicarious liability, as set out
in Lister, should be reconsidered and replaced to ensure a just result.

What test for vicarious liability did the Supreme Court apply?
The court reaffirmed the established test from Lister, namely whether the miscreant’s torts were
so closely connected with his employment that it would be fair and just to hold the employers
vicariously liable. But it applied the test in such a way as to allow a just result in favour of the
appellant.

What did the court decide and why?

Lord Toulson, giving the leading judgment, said that the assailant was employed to attend to
customers. His conduct towards the appellant was clearly unauthorised but was within the field
of activities assigned to him. Because the assailant’s conduct arose from his position serving
customers for his employer, it was just that the respondent be liable for his abuse of that position.
Lord Toulson stated:

‘I do not consider that it is right to regard him as having metaphorically taken off his uniform
the moment he stepped from behind the counter.’

The appeal was therefore allowed.

Does the decision leave any grey areas?

In reaching its conclusion, the court appears to have applied the Lister test in a very different and
more liberal manner than has been allowed in previous cases before the courts at all levels.
Previous cases emphasised that vicarious liability would only arise if the miscreant’s
employment duties and responsibilities were such that there was a special risk of harm.
The cases which have been successful have therefore involved situations such as nightclub
bouncers assaulting club-goers (on the basis that bouncers are employed to keep order, using
force if necessary) and wardens in residential homes abusing children in their care (because they
are in a position of trust over vulnerable children in an unsupervised setting).
The difficulty with the Supreme Court’s judgment is knowing how it is likely to apply to the
various different factual situations which might arise. It is relatively clear that vicarious liability
will be established where a shop assistant assaults a customer, but what would be the result if,
21
say, a delivery driver who is employed by a retailer (and is not responsible for dealing with the
public) assaults a customer at the employer’s premises, or a shop assistant assaults a colleague
while on duty rather than a customer?

What are the practical implications of this decision?

The exact scope of this judgment is difficult to define but it will make it easier to establish
vicarious liability in more cases. Employers will want to take extra care with whom they employ
and how they are trained to minimise the risk of violence at work. But the risk of wrongdoing by
employees cannot be eliminated; and for that employers will wish to check the terms of their
insurance.
The broadening of cases in which vicarious liability will arise may assist victims of abuse by
Jimmy Savile and others, where that abuse was committed or, perhaps, commenced during their
working time.

22