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Question 1

Issue- Is there a negligence on the part of Nico’s, Argus International, and Besco’s
Supermarket?

Rule- To prove negligence on the part of the defendant, these elements must be present:

 Existence of a duty
 Breach of the duty
 When the plaintiff sustains injury due to negligence (it must be proved that the
plaintiff’s injury should be foreseeable and a result of the defendant’s conduct who
increased the risk)

Analysis- Linda and Molly ordered medium rare hamburgers and fries on Sunday, 4th
October. However, Molly had found that the meat in her hamburger was rare, at best, but she
had not complained. She later fell violently sick and died on Thursday. Linda developed a
fever and felt nauseous but got better. In the other case, a middle-aged gentleman, Mr. Kelvin
Lithgoe dies after consuming a pack of processed meat. The meat in the hamburger and the
one that Mr. Kelvin consumed were supplied by Argus International. The first thing that we
need to analyze is whether Nico’s, Argus International, and Besco’s Supermarket owed a
duty of care. In Donoghue v. Stevenson1 it was held that a duty of care is owed to
“neighbours.” In this case, a neighbour was understood to mean those persons who are so
directly and closely effected by the acts of the defendant that the defendant ought to have
them in its reasonable contemplation when doing or omitting to do an act. This definition of
neighbour was further crystallized in the case of Caparo Industries v. Dickman2 where it was
held that a neighbour is one who is not only proximate but also one who is foreseeable and
for whom a duty of care can reasonably, justly, and foreseeably be imposed on the defendant.
Therefore, Linda, Molly, and Mr. Kelvin were neighbours of Nico’s and Besco’s
Supermarket, respectively. Linda and Molly were customers at the eatery- customers are
always neighbours of restaurants or eateries- they are directly and closely affected by the acts
of these eateries so they must always have customers in their reasonable contemplation while
making some business decisions (like the one regarding how much the hamburgers were
cooked). Same applies for supermarkets. It might be argued that they should be sure about the
quality of things what they sell to their customers (Mr. Kelvin here) as they owe a duty of
1
Donoghue v. Stevenson [1932] UKHL 100.
2
Caparo Industries v. Dickman [1990] UKHL 2.
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care. Moreover, they are foreseeable victims of negligence and it is just, fair, and reasonable
to impose a duty of care on eateries and supermarkets in respect of customers.

The second question that needs to be answered is whether the supermarket and eatery
breached this duty of care. It is argued that Besco’s did not breach this duty of care whereas
Nico’s did. As per Blyth v. Birmingham3, it was held that the duty of care is breached when
the acts of the defendant falls below the standard of care exercised by a reasonable man of
ordinary prudence. The supermarket was acting reasonably as far as Mr. Kelvin was
concerned. The meat packs had an advisory on it which said that the contents should be at
least cooked to “medium-doneness”. The fact that this advisory had sufficed in the past (there
had been no complaints in the past) proves that the supermarket was selling things that
warned the customers4. Moreover, Mr. Kelvin died because the meat was undercooked and
not because of the negligence of Besco’s. The duty of care was breached by people in Nico’s,
the cook, and the waiter both owed a duty of care but cooked and served undercooked rare
meat whereas Argus’ meat should always be medium-done according displayed advisory on
the ground meat packages. It might be said that Molly and Linda ordered medium rare
hamburgers which were not safe, but they should have been warned. Moreover, what they
were served was “rare, at best”. This resulted in Linda falling sick and Molly dying due to the
deadly strain of H7. Therefore, Mr. Kelvin was negligent but not Molly and Linda who are
foreseeable victims and the defendant’s conduct increased their risk. The owner of Nico’s
could also be held vicariously liable for employees within the scope of his employment. He /
she could also be directly negligent for negligent supervision and hiring. Argus International
does not owe any duty to either of the three people who have been affected and they are not
neighbours either. It just supplied to the retail chain. There is no breach of duty either.

Conclusion- Nico’s is liable for negligence whereas Besco’s Supermarket and Argus
International are not.

Potential Defences- Besco’s and Argus could possibly be use “inevitable accident” as a good
defence. There was no intention to harm the plaintiff, Mr. Kelvin and care and precautions
had been taken which could prevent the injury as was held in Stanley v. Powell5.

3
Blyth v. Birmingham (1856) 11 Ex Ch 781.
4
Note: Just because something happens for the first time does not mean that it is unforeseeable, but it can be
used to argue that the precautions of the past (such as the advisory) are precautions which reasonable people use.
The use of this advisory then makes Besco’s reasonable and so the argument goes.
5
Stanley v. Powell (1891) 1 QB 86.
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Question 3

Issue- Can there be a case of defamation against Roman? Can there be a case of battery by
Tanav?

Rule- To prove defamation:

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 Reputation must have suffered an injury

 Defamatory statement should have been published (made aware to a 3rd
party/person)
 Libel usually involves a level of malice beyond that in slander
 Public memory is short, and reputations do not stay injured for so long. The
plaintiff would act sooner.
 Both Libel and slander have a limitation period of one year.

For battery plaintiff must establish:

 Physical contact is necessary to qualify battery.

 All the cases where a party throws any missile on another are also included.
 Force can be applied directly or indirectly to any object in contact with the body.
 Physical injury need not be caused but as long as there is some physical contact it
will still be battery.
 The intention of the party must be considered.

Analysis- After six months when Sandy is unable to find a teaching or coaching position in
the community, she can file a case for defamation. Limitation period of one year has not been
crossed. Since her reputation has been harmed, she can file a case. This is a matter of both
libel and slander. Slander is the false and defamatory verbal statement which is not
permanent but harms her reputation in front of the parents and student-players after the game.
It is also the accusation he keeps spreading through the parents and students after that game.
The claims are not lawfully justifiable and are false because they have not been proved to be
true and have also not been substantiated.

“The head coach is a thief! Lock her up!” is the libel here. Her outburst and striking a parent
were of delight to Roman. So, he kept spreading the accusations across social media. It is
false because it has not been proved to be true and it is in a permanent form which will last.
Social media is treated as publication in permanent form and in legal sense when other social
media users can view it. The first impression of Sandy will also be harmed when this news
gets spread according to the principle of ordinary man. She was injured in her profession also
and did not get any job until six months because of the accusations which were not
substantiated. Therefore, she is defamed.
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Although everyone did see Sandy throwing a basketball, she had aimed it at Roman out of
outrage. There was no battery because she did not want to strike Tanav on the face and inflict
bodily harm. “In the area of intentional torts, intent means the defendant either desired to
bring about the physical results of his act or believed they were substantially certain to follow
from what he did.”6 In the present case, there is no intention and Sandy thought that it would
hit the part-time assistant coach, Roman whom she had thrown at. Therefore, battery was not
committed. Therefore, Tanav cannot claim damages for mental humiliation or distress.

Conclusion- No battery has been committed on Tanav and Sandy has been defamed.

Potential Defences- Roman can say this as a defence:

Truth as a defence- Even if the tort is done out of malice, the defence is available, and falsity
is presumed. Roman does not have to establish all aspects to be true, just the substantial
claim. It would make no difference if it turned out later to be true.

Question 4

1. To prove negligence on the part of the defendant, these elements must be present:

 Existence of a duty
 Breach of the duty
6
Bazley v. Tortorich 397 So. 2d 475 (La. 1981).
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 When the plaintiff sustains injury due to negligence (it must be proved that the plaintiff’s
injury should be foreseeable and a result of the defendant’s conduct who increased the
risk)

The first thing that we need to understand is whether he owed a duty of care. In Donoghue v.
Stevenson7 it was held that a duty of care is owed to “neighbours.” In this case, a neighbour
was understood to mean those persons who are so directly and closely effected by the acts of
the defendant that the defendant ought to have them in its reasonable contemplation when
doing or omitting to do an act. This definition of neighbour was further crystallized in the
case of Caparo Industries v. Dickman8 where it was held that a neighbour is one who is not
only proximate but also one who is foreseeable and for whom a duty of care can reasonably,
justly, and foreseeably be imposed on the defendant. Therefore, Ross was a neighbour of the
‘zoological garden’ at Central Perk because visitors directly and closely affected by the acts
of animals in the zoological garden. So, visitors must be kept in reasonable contemplation
while making decisions regarding the animals kept. Moreover, they are foreseeable victims of
negligence and it is just, fair, and reasonable to impose a duty of care on the zoological
garden.

The second question that needs to be answered is whether the zoological garden breached that
duty of care. As per Vaughan v. Menlove9, it was held that the duty of care is breached when
the acts of the defendant falls below the standard of care exercised by a reasonable man of
ordinary prudence. There was no warning regarding the fact that the camel might bite or that
feeding in the zoological garden was not allowed. However, considering that there was no
knowledge of prior attacks, “Liability may arise depending upon the kind and character of the
particular animal concerned, the circumstances in which it is placed, and the purposes for
which it is employed or kept… all the surrounding facts and circumstances should have been
examined to determine the foreseeability question.”10 Marcel was a domestic animal which
was kept in a fenced enclosure. He was described as ‘very docile’, ‘obedient’, and ‘gentle,
non-aggressive’. Camels tend to viciousness but “only under the control and in the service of
man as a domestic animal, carrying loads of people or products.” Keeping all these in mind, it

7
Donoghue v. Stevenson [1932] UKHL 100.
8
Caparo Industries v. Dickman [1990] UKHL 2.
9
Vaughan v. Menlove (1837) 3 Bing NC 468.
10
Rowland v. Log Cabin, Inc. 2003 S.D. 20.
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was not foreseeable that Marcel would bite Ross. Phoebe was acting as a as a reasonable man
of ordinary prudence and there was no breach of duty by him towards Ross.

The third question of consequential damages need not be answered as there was no breach of
duty by the shop owner. Therefore, Ross cannot file a suit of negligence against Phoebe.

2. “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm

results to anyone on account of an accident in the operation of such hazardous or inherently
dangerous activity, the enterprise is strictly and absolutely liable to compensate all those who
are affected by the accident and such liability is not subject to any of the exceptions which
operate the tortious principle of strict liability under the rule of Rylands v. Fletcher11."12 The
zoological garden cannot escape its liability just because he is a domestic animal. It is known
to become vicious to humans when under service or control which was not this case.
However, there always remains a chance that it might do harm. The crushed and bitten hand
was a direct consequence of Marcel biting Ross. Therefore, Phoebe must absorb the cost of
the accident. They also failed to warn against any possible dangers. Moreover, Phoebe cannot
escape liability by showing that it had taken reasonable care and there was no negligence
because camels had no such natural tendency.

3. Phoebe can claim the potential defence of volenti non fit injuria. When Ross was feeding
Marcel, he should have known that although he is a domestic animal, an animal at the zoo
can bite his hand.

Question 6

11
Rylands v. Fletcher (1868) LR 3 HL 330.
12
M.C. Mehta v. Union of India 1987 AIR 1086.
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Issue- Can Chris bring a claim for assault and battery against John? Is there false
imprisonment of John?

Rule- For assault plaintiff must establish:

 Gesture / preparation: threat of force

 Causes reasonable threat in the mind of the victim
 Present and sensible ability of the threat to be enacted on the victim
 Plaintiff does not need to prove intention

For battery plaintiff must establish:

 Physical contact is necessary to qualify battery.

 All the cases where a party throws any missile on another are also included.
 Force can be applied directly or indirectly to any object in contact with the body.
 Physical injury need not be caused but as long as there is some physical contact it
will still be battery.
 The intention of the party must be considered.

For false imprisonment plaintiff must establish:

 Must be unlawful
 Liberty of the confined person is under total restraint
 Time is irrelevant
 Strict liability, so fault is irrelevant and there is no need to prove it
 Actual physical contact is unnecessary

Analysis- In the case of Letang v. Cooper13, it was held that if one injures another
intentionally then an action will lie under intentional torts. On the other hand, if one injures
another unintentionally, the action will lie in the tort of negligence. If John actually had the
intention to cause injury to Chris, an action will lie in assault and battery if all the other
criteria for those torts are met.

In this particular fact situation, John who was leaving the faculty offices was seen by Chris
who was running behind him, waving his baton. His intention to hit Brian was conveyed
“when he looks down at his laptop and grimaces” and throws it right after that. He already

13
Letang v. Cooper [1965] 1 QB 232.
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had issues with Academic Affairs and being on probation did not want to get caught by Chris
at any cost. Thus, it is clear that John had intended to hit Chris. Hitting someone is an
unjustified response to cutting the food line. Therefore, the first element of assault is met:
John had the intention to cause harmful/unjustified/unlawful contact with Chris.

The second part of assault is also met as Chris had a reasonable apprehension of imminent
contact from John when the laptop was thrown “directly at Chris” and because John was only
10m away from Chris. Moreover, Chris saw John throwing the laptop and also identifies him
later as the student who attacked. The threat was imminent in time and space. This is
sufficient to establish that Chris had a reasonable apprehension of imminent contact with
John.

Finally, even the tort of battery is made out in this case. It was held in the case of Cole v.
Turner14 that even the mere touching of another in anger (in other words-
unlawfully/harmfully/unjustifiably) is battery. John was not justified in hitting Chris. As
Adam acted with the intention of causing unlawful/unjustified/harmful contact and such
contact is actually caused, Adam has committed the tort of battery.

A private person may only confine a person who he / she thinks has committed a cognizable
and a non-bailable offence or is a declared offender.15 John was none in this case and so it
was unlawful. The time of 45 minutes is irrelevant, and he was under total restraint, locked in
the office.

Conclusion- Forcefully retaking goods that legally belongs to someone can be a valid
defence. Here, John’s laptop is stolen and then he receives an anonymous WhatsApp text and
pictures which tell him that it is in Professor Brown’s office. So, he sneaks in to get what was
lawfully his and therefore this defence stands. Since Bob is strictly liable, a case of false
imprisonment can be brought against him.

14
Cole v. Turner [1704] 6 Mod Rep 149.
15
Holgate Muhammad v. Duke [1984] 1 All E.R. 1054.