Seat no.

421059

In words: four lakh twenty one thousand fifty nine

Semester: October 2021

Name of course: LAW OF TORTS

Q.1. Mr. Hulk was hired as the bodyguard at Rainbow Night Club. Mr. Hulk
was a decent man who rarely resorted to any violence except in cases
where it deemed necessary for the well-being and safety of the customers
inside the night club. Mr. Hulk was well built and resembled a Praetorian
Guard. His employer, Mr. Marvel instructed him to stand near the dancing
area and to notice any deviant. He further instructed Hulk to use
necessary force to eject any person out the night club if they breach the
security measures. One night, Mr. Abomination visited the night club with
2 other male friends and after various rounds of liquor consumption, he
decided to go dance in the dancing area. Ms. Betty Ross and her friends
were also dancing in that area. Suddenly, Mr. Abomination starts
misbehaving with Ms. Betty Ross. Mr. Hulk warns Mr. Abomination of dire
consequences if he does not stop the harassment. Mr. Abomination
continues to harass Ms. Betty Ross to the extent that it could jeopardize
her bodily integrity. Mr. Hulk intervenes and tries to stop Mr.
Abomination. They both enter into a fight where Mr. Abomination punches
Mr. Hulk on the face. Mr. Hulk retaliates by punching Mr. Abomination on
the chest. Mr. Abomination fell on the ground unconscious and suffers a
stroke in the heart. The friends of Mr. Abomination inform Mr. Hulk and
Mr. Marvel that Mr. Abomination is on a pacemaker and the severe blow
on his chest may have broken the pacemaker and led to the stroke or
heart failure. They immediately take Mr. Abomination to the nearest
hospital and the doctors confirm that the pacemaker of Mr. Abomination
was broken from the accident which led to the heart failure. After several
days in the hospital, Mr. Abomination recovered and now wants to sue the
master, Mr. Marvel and the night club for the wrong committed against
him. Argue either for Mr. Abomination, the plaintiff or Mr. Marvel and Mr.
Hulk, the defendants. Advise about the possible course of action by
classifying the offence and its type and elaborating upon its elements).
Substantiate your answer with judicial pronouncements. (10 Marks)

Answer

Master and servant

Master is liable for the acts done by his employee during the course of the
employment.

Master is also liable for unauthorised acts provided that they are
connected to the authorised acts and it has been improperly executed.

Distress of damage feasant

The plantiff can remove by using reasonable force a damage causing

entity in his premises.

In the above case the defendants shall be liable because

1. even if the plaintiff was causing damage and got violent with mr hulk
the the force used my mr hulk a professional guard was enough to break
the pacemaker in the chest of the plaintiff which clearly indicated the
force used by mr hulk was unreasonable and in aggressive emotions as
the plantiff has punched him prior to his retaliation.

2. mr marvel as the master of mr hulk shall be liable because the injury

he has caused to the plaintiff was in the course of employment and the
authority to use force has been authorised by the master.

3. this authority was misused by mr hulk therefore he is liable and

because mr marvel is his master he is vicariously liable.

This can also be verified by the control test that the manner in which mr
hulk acted was permitted by his master.

Case law

General engineering services ltd vs Kingston and saint Andrew corporation

1988

A fire broke out in the premises of plaintiff and he informed the fire
brigade for so. The distance b/w them was 1.5 miles and can be covered
in 3.5 minutes but they arrived in 17.5 minutes because of their agitation
of going slow, I the meantime the fire gutted the goods of the plaintiff
and he sued the corporation for it. The court held that the act of being the
fire brigade and their duty was to provide immediate which was carried
out improperly, thus an authorised but improper. The defendents were
held vicariously liable.

Q.3. Piper, a convict was attacked by another convict Beth in the jail.
Both Piper and Beth were in the same cell of the jail. Piper informed the
jail authorities about the attack, but they paid no heed to her complaints
and did not change her cell. Once again, Beth attacked Piper by a knife
and cause bodily injury to her. Piper had to be hospitalized consequently
thereof. Can Piper sue the jail authorities for the failure to provide safety
to her in the prison? Advise Piper using legal principles of Torts.
Substantiate your answer with judicial pronouncements (10 Marks)

Answer

Rights of a convict to sue in torts

A convict can sue for the for the torts committed against him in prison
according to forfeiture act 1870. A conict does not loose his/her civil even
when they are serving their punishment in the prison.

Negligence

Failure to observe the duty of due care and caution that a person in
charge owes to a person. It is measured in the same way as what would a
person of normal prudence do in the situation.

Nonfeasance

Failure or omission on the part of a person to perform the duty/ obligation

he owes to other persons.

In the following case

1. piper can sue the jail authorities for nonfeasance as she has informed
the jail authorities that the inmate companion with her has been violent
with her and they still did not change her cell.

2. the jail authorities were negligent and ignored the claim of the plaintiff
and she was in jured as a direct consequence of their negligent act.
Sunil Batra v. Delhi Administration, 1978

It was held by the court that being under a jail term does not viciate the
civil rights of the inmates.

Smt. Keval pati vs state of up 1995

A convict was attacked by his fellow inmates and was killed. The jail
authorities failed to protect him. The representative of the deceased sued
the authorities. The court held it is a gross violation of fundamental rights
caused by the negligence of the jail authorities, therefor they were held
liable.

Q.4. Write short note on the following: (Both sub parts are compulsory)
(10 Marks)

i. Actio Personalis Moritur Cum Persona

ii. Capacity of a minor to sue and be sued in Torts

Answer

i. Actio Personalis Moritur Cum Persona is a general rule in the common

law that the right of action dies with the parties.

This means that the parties that are contesting in a court against each
other in a court, the action will terminate if one of the parties die during
the course of the trial.

This was so held till 1934 but after the law reforms act,1934 the situation
has changed

Sec 1(1) of the act state that all cause of tortious actions will come to an
end after the death of the part except the ones od defamation and the
charge shall be against the estate.

In india the doctrine is valid

As action under contract- the obligation can be discharged either by the
person himself or by his representatives, it is dependent upon the
intention of parties

illustration

If the parties under a contract of sale, and the promisor dies then his
legal representatives are to complete the contract on his behalf.

If it is a case of personal qualification and the promisor dies the lr’s are
not liable but they are to restore the benefit under the contract taken.

ii. Capacity of a minor to sue and be sued in Torts

a minor can be sued in torts as a major

the law of torts does not dis criminated but it need to be taken into
consideration the mental elements in case of deceit, defamation,etc.

Walmsley v. Humenick, (1954)

The court held that a 5 year old child cannot be held liable for negligence
as he has not developed the mental capacity to understand the nature of
his acts.

Johnson v. Pye, (1665)

A minor deceitfully obtained a loan of 300 ponds , it was hels that the
minor cannot be expected to return the amount.

Ballet v. Mingay, (1943)

A minor hired a microphone and an amplifier and

improperly passed it to a friend. The infant was held

liable for detinue.

Q.5. Write a short note on liberalization of locus standi. (5 Marks)

Answer

Locus standi means the capacity of a person to challenge an act or

decision

The traditional states that only the parties connected to the the tort can
sue for it. Only when the person proved that he has suffered a special
damage or injury only then can he shall sue.

It is based on right-duty postulate which states on ly the person whose

legal rights have been threated may sue for it.

Liberalisation of locus standi

The Report on National Juridicare, Ministry of Law Justice and Company

Affairs, Government of India, 1977

The report stated they each person going to court for the same cause in
itself was wrong and we need to rise above the vintage understanding the
british rule and widen the scope of locus standi and include PIL, CLASS
ACTION SUIT, etc.

Municipal Council Ratlam v Vardhichand justice ayer stated the need to

liberalise the need for liberalisation of locus standi.

In S P Gupta v. Union of India, 1982 that if a person in not eligible to go

to courts and seek justice and another person cannot seek on his behalf
the issue will go unredressed.
 Q.2. Every year around the month of November, the state of Mahishmati
(fictitious Indian state) experiences a smog like situation because of the
stubble burning in the neighboring states. The situation became grim in
the year 2021 when the smog was characterized as a pea soup fog which
led to severe respiratory illness, air pollution, and death of people in the
state. In addition to that the fog also caused stark darkness on the streets
causing problems to the pedestrians. Mr. Ronit was leaving from his
house to visit the nearby grocery store. Mr. Ram was a hawker selling
face masks on the street. Since there was darkness, Mr. Ronit accidentally
hit Mr. Ram. Mr. Ram sustained injuries. Mr. Ram wants to sue for the
accident. Mr. Ronit states that the accident occurred due to the pea soup
fog which blocked visibility and was an Act of God. Will Mr. Ronit succeed?
Advise Mr. Ronit by analyzing and elaborating upon the tortious liability.
Substantiate your answer with judicial pronouncements (10 Marks)

Answer

Act of god as defence under torts

An event which no human intervention can see or prevent from

happening. So, there arises no obligation to pay damages.

In the above case

1. the pea soup fog can be called act of god because of the low levels of
visibility it created

2 but, the defence of act of god shall not be available because it fog was
already there and measures like fog lamps, common prudence could have
avoided the injury to mr rohit.

Illustration

If the municipal corporation in the area has not cut a dying willow tree
and due to rain it fell on the defendant the corporation shall be liable.

State of Mysore v. Ramchandra, AIR 1972

A water storage unit was built by the dependent but no precaution to

divert excess water was taken therefor court held the defendant liable.
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