END TERM EXAMINATION 2021-22

[Programme BA.LLB,BBA.LLB]
Semester [II]
Course code: BAL 204 Course Title: LAW OF TORTS
Answer key Set B

SECTION A

Q1 Explain the maxim ubi jus ibi remedium?(4 marks)

Ans-1) It is a Latin maxim which means that where there is a wrong, there is a remedy.

2)  If any wrong is committed then the law provides a remedy for that. The maxim can be phrased as
that any person will not suffer a wrong without a remedy, it means that once it is proved that the right
was breached then equity will provide a suitable remedy.

3) This principle also underlines the fact that no wrong should be allowed to go without any
compensation if it can be redressed by a court of law.

4) The law presumes that there is no right without a remedy; and if all remedies are gone to enforce a
right, the right in point of law ceases to exist.

5) This maxim also says that there is no remedy without any wrong and the persons whose right is
being violated has a right to stand before the court of law.

Q2 Distinguish tort from crime and breach of contract?(4 marks)

Ans- 1) Undoubtedly, crime is nothing but doing something wrong. Specifically, in

this case, the impact is on society in general. There are special cases or acts which
are a crime under the state legal system. In case, a person does any of the act, the
law will take necessary decisions of punishment in the court.
2) Unlike a crime, tort is doing something wrong hampering individual parties. In
legal terms, a tort happens when negligence directly damages a person or his/her
property. There are different types of torts, but all of them result in injury to a
private person or property.

3) A Tort is a civil wrong in which remedy is action for damages.Whereas breach of contract is a
breaching or breaking of a promise which he has do in the agreement of an contract.Tort is a
violation of  legal right.Breach of contract is an infringement of a legal right. Damages in tort are
always unliquidated.Whereas in breach of contract the damages is liquidated.

Q3 Write a short note on Mistake?(4 marks)

Ans: 1) There are two types mistakes-mistake of law and mistake of facts.
2) the mistake of law is no defence to the violation of the law. It is presumed
that all people know and understand the law of the land, except minors,
lunatics or insane. There are few other rare exceptions to this rule.

3) A mistake of fact can be an exception in reducing or eliminating the

liability of the person. A person cannot escape his liability for intentional
mistakes. A criminal defendant can argue that he/she never intended to
commit the crime. The criminal act that occurred as a result of the mistake of
fact as per the situation demands or misunderstanding.

Q4 Write a short note on Necessity.(4marks)

Ans-1) The doctrine of necessity states that if an act is done and it causes
harm but it is done in good faith in order to prevent harm, the person who
does such an act is not liable. This is so provided that the harm caused due
to an act done in necessity should not be intentional in nature.

2) Also, it should only be done in cases where the purpose is to prevent

greater harm which might be caused if the minor harm is not caused by the
defendant.

3) The general rule is that a person shall not unduly interfere with the rights
or property of another but the exception to this is that if a  person is in a
position in which he is forced to interfere with another’s right in order to
prevent harm to himself or to his property, such interference is allowed. The
defence of necessity recognizes that there may be situations of such
overwhelming urgency that a person must be allowed to respond by breaking
the law.

Q5 Discuss res ipsa loquitor.(4 marks)

Ans- 1) Res Ipsa Loquitur is a Latin phrase that means the thing speaks for
itself. In the law of torts, it is a very popular doctrine. In cases, where the
evidence is itself sufficient to prove the guilt of the defendant, the maxim is
used there. So, the maxim points out any circumstantial evidence or an
object which itself shows that an act has been committed. It shows that if
the defendant was not negligent, the accident would not have happened.

2) In the law of torts, to prove somebody's negligence, the burden of proof is

on the plaintiff which means the person who is the victim of the tort. It
becomes really difficult to prove that the defendant was at fault and also to
gather evidence against his act or omission.

3) If the plaintiff is not able to prove negligence on the part of the defendant,
the defendant cannot be made liable. So, the principle of Res Ipsa Loquitor
came into force under which a plaintiff can use circumstantial evidence to
establish negligence.

Q6 . What is meant by Duty to take care? (4 marks)

Ans: It is one of the essential conditions of negligence in order to make the
person liable.
It means that every person owes, a duty of care, to another person while
performing an act. Although this duty exists in all acts, but in negligence, the
duty is legal in nature and cannot be illegal or unlawful and also cannot be of
moral, ethical or religious nature.

In the case of Stansbele vs Troman(1948), A decorator was engaged to carry

out decorations in a house. Soon after The decorator left the house without
locking the doors or informing anyone. During his absence, a thief entered
the house and stole some property the value of which the owner of the house
claimed from the decorator. It was held that the decorator was liable as he
was negligent in leaving the house open and failed his duty of care.

Q7 Explain Conversion with examples under Trespass to Goods.(4

marks)

Ans: 1) A conversion is any act of wilful interference, without any lawful

justification, in a manner which is inconsistent with the right of another,
whereby that other is deprived of the use and possession of the chattel.

2) If a person deals with a chattel in a manner which is of such a nature that

is necessarily inconsistent with the rights of the plaintiff, such dealings will be
considered as intentional and will amount to conversion even if he did not
know of the right held by the plaintiff and honestly believed that he was
entitled to do so. 

3) The tort of conversion is applicable only to chattels and does not extend to
cover the appropriation of chooses in action.

Q8 Explain briefly Pigeon Hole Theory.(4 marks)

Ans: According to Salmond, no single principle can be applied to ascertain

the liability of the wrongdoer. Only well-defined wrongs should be considered
as tort and confined within a small box known as a pigeon hole. He compared
the domain of tort to that of a pigeon hole with a number of smaller holes.
These smaller holes would represent assault, slander, battery, malicious
prosecution, and all the recognized wrongs. He was against having a general
approach to the law of tort. A remedy would be available for only those
wrongs which would fall under the established torts and the burden of proof
would be on the plaintiff to establish that the wrong would come under the
ambit of a specific, identified tort. If a wrong would not be a part of any of
these holes, no claim could arise.

Q9 What is Distress, Damage Feasance?(4 marks)

Ans: “Distress” means the right to detain
and “Damage” means “injury” and “Feasant” means “wrongful act”. If a man
unlawfully finds another man’s cattle or chattel on his land causing damages,
he is entitled to seize and detain the cattle, which are impounded, to force
them to compensate for the damages caused by their owners. This right is
called the right to damage caused by distress. Distress is usually taken from
straying bovines, but any other cattle that illegally encumbers and damages
the land of a man can just as well be taken.The law has always severely
restricted the right to arrest and to be an extrajudicial remedy. It must,
therefore, be held on the land of the detainer. He has no right to go after and
recapture the thing if the thing escapes.There is no right to distress when
there is no infringement. Therefore, when the cattle are driven along a
street, they can not be arrested on their driver’s way to the adjacent
undisturbed land until there is a reasonable opportunity to drive them back.
It is not lawful to take anything under the personal control of someone else
by way of distress damage.

Q10 Which Principle was given in the Case of M.C Mehta V. UOI.
Discuss briefly.(4 marks)

Ans: The rule of absolute liability, in simple words, can be defined as the rule of strict liability
minus the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union
of India. The facts of the case are that some oleum gas leaked in a particular area in Delhi from
industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule of
absolute liability on the rule of strict liability and stated that the defendant would be liable for the
damage caused without considering the exceptions to the strict liability rule. This is one of the most
landmark judgment which relates to the concept of absolute liability.According to the rule of absolute
liability, if any person is engaged in an inherently dangerous or hazardous activity, and if any harm is
caused to any person due to any accident which occurred during carrying out such inherently
dangerous and hazardous activity, then the person who is carrying out such activity will be held
absolutely liable.The exception to the strict liability rule also wouldn’t be considered. The rule laid
down in the case of MC Mehta v UOI was also followed by the Supreme Court while deciding the
case of Bhopal Gas Tragedy case. To ensure that victims of such accidents get quick relief through
insurance, the Indian Legislature passed the Public Liability Insurance Act in the year 1991.

SECTION B

Q11(a) Is it Law of Tort or Law of Torts? Discuss.(6 marks)

Ans: 1) There are two competing theories in this regard. According to one theory, there is a general
principle that all wrongs are actionable as tort unless there is any legal justification. The other theory
says that there is no general principle of liability as such but only a definite number of torts as
trespass, negligence, nuisance, defamation etc. and the plaintiff has no remedy unless he brings his
case under one of the nominate torts.

2) This theory was propounded by sir Frederick Pollock in 1887 and was vehemently supported by
Winfield . he is the chief supporter of this theory. He says, all injuries done to another person are torts,
unless there is some justification recognized by law. Thus according to this theory tort consists not
merely of those torts which have acquired specific names but also included the wider principle that all
unjustifiable harm is tortuous. This enables the courts to create new torts. Winfield while supporting
this theory comes to the conclusion that law of tort is growing and from time to time courts have
created new torts.

3) The theory given by Winfield has been supported by many eminent Judges both ancient and
modern. Following are some examples:-

· HOLT, C.J. clearly favoured Winfield's theory, by recognizing the principle of ubi jus ibi remedium.
He said that, if man will multiply injuries, actions must be multiplied too; for every man who is
injured ought to have recompense.

4) Winfield's Theory And Indian Judiciary: Indian judiciary has also shown a favour to Winfield's
theory. In the words of Justice BHAGWATI, C.J., we have to evolve new principles and lay down
new norms which will adequately deal with new problems which arise in a highly industrialized
economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails
in England... we are certainly prepared to receive light from whatever source it comes but we have to
build our own Jurisprudence. In the same case the Supreme Court of India established the concept of
ABSOLUTE LIABILITY in place of strict liability.

5) Salmond on the other hand, preferred the second alternative and for him, there is no law of tort, but
there is law of torts. According to him the liability under this branch of law arises only when the
wrong is covered by any one or other nominate torts. There is no general principle of liability and if
the plaintiff can place his wrong in any of the pigeon-holes, each containing a labelled tort, he will
succeed. This theory is also known as ‘Pigeon-hole theory'. If there is no pigeon-hole in which the
plaintiff's case could fit in, the defendant has committed no tort.

6) According to Salmond, the law of torts may be described as a " a neat set of pigeon- hole,each
containing a specific labeled tort."also he propounded that "just as the criminal law consists of a body
of rules establishing specific offences, so the laws of torts consists of a body of rules establishing
specific injuries."

OR

(b) Distinguish between Intention and Motive.(6 marks)

Ans: 1)The intention is the basic element for making a person liable for the crime, which is
commonly contrasted with motive. Though we often use the two terms interchangeably, these are
different in the eyes of law. While intention means the purpose of doing something, motive
determines the reason for committing an act.

2)The primary difference between intention and motive is that intention

specifically indicates the mental state of the accused, i.e. what’s going on
in his mind, at the time of the commission of a crime, whereas motive
implies the motivation, i.e. what drives a person to do or refrain from
doing something.

3)In criminal law, the term intention is explained as the deliberate cause
and known effort, to act in a particular manner which is not permitted by
law. As against, the motive is defined as the implicit cause, which
instigates a person to do or not to do something.

4)The intention of a person can be determined by the use of particular

means and the circumstances, that resulted in the criminal offence.
Conversely, the motive is the reason, that drives a person to do an act or
refrain from acting in a specific manner.

5)While the intention is the expressly defined purpose of the crime, the
motive is hidden or implied purpose.

6)When the intention of a person, is the element for affixing criminal

liability, it must be proven beyond reasonable doubt. On the contrary, the
motive is not the primary element for affixing culpability, so it need not be
proven.

OR

Q12(a) Discuss Theories of Negligence.(6 marks)

Ans: According to some jurists, negligence is not a state of mind but a particular kind of
conduct. In this view, negligence is due to failure to take reasonable precautions.According
to Clark and Lindsell, negligence consists in the omission to take such care as under the
circumstances it is the legal duty of a person to take.According Pollock, negligence is the
opposite of deligence and no one describes deligence as a state of mind.

According to objective theory, negligence is not a subjective but an objective fact.  It is not a
particular state of mind or form of mens rea at all, but a particular kind of conduct. 
Negligence is a breach of the duty of taking care.  To take care means take precautions
against harmful results of one’s actions.  Negligence consists in pursuing a course of conduct
that an ordinary prudent man would not.  To drive at night without light is negligence
because carrying light is an act of a prudent man. To take care, therefore, is no more a
mental attitude or state of mind.This view (objective theory) receives strong support from
the law of torts where it is clearly settled that negligence means a failure to come up to the
objective standard of the conduct of a reasonable man. Glanville Williams attempts to
reconcile both the theories by saying that the term negligence has two meanings and each of
the two theories represents one of them.  Negligence may be contrasted with intention on the
one hand and inevitable accident on the other.  As contrasted with intention, negligence is
subjective ( a state of mind).  Poison may be left unlabelled with an intention that some one
may drink it and die.  It is difficult to distinguish in this case whether the act is intentional or
negligent unless we peep into the offender’s mind.  Leaving the poison like that may be due
to accident.As contrasted with inevitable accident, negligence is a particular type of conduct. 
If the question is whether the defendant caused the harm without any fault on his part or by
his unintentional fault, it can be answered only by looking into whether his conduct came up
to the standard of a reasonable man.

Hence, it may be said that the subjective and objective theories operate in different fact
situations and would be erroneous to postulate any intrinsic conflict between them.

(b) Explain briefly Rule of Absolute Liability with reference to M.C Mehta V.

UOI.(6 marks)
Ans: 1) The MC Mehta vs Union of India case is one of the important cases of environmental
advocacy. Until the MC Mehta vs Union of India case, the rule of Strict Liability in Ryland v.
Fletcher was applied. Based on this principle, the industry owner or operator would be liable for any
inherently hazardous acts on their property. However, the principle of Strict Liability had several
defences and limited exceptions, including the Defence of ‘Act of God.'

2) With the advancement of technology and industrialization, hazardous substances and gases have
increased manifold, posing a greater threat to the environment. Therefore, in the Oleum Gas Leakage
case, the principle of Strict Liability was replaced with Absolute Liability.

3) The MC Mehta vs Union of India is an essential chapter in the history of the Indian Judiciary as,
for the first time, the Supreme Court held a company completely responsible for the gas leakage,
irrespective of its defence and claimed loss. Furthermore, the case set an example in laying strict
security measures for all industries.

4) The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry.
Due to the leakage, many people were affected. The Apex Court then evolved the rule of absolute
liability on the rule of strict liability and stated that the defendant would be liable for the damage
caused without considering the exceptions to the strict liability rule. This is one of the most landmark
judgment which relates to the concept of absolute liability.

5) According to the rule of absolute liability, if any person is engaged in an inherently dangerous or
hazardous activity, and if any harm is caused to any person due to any accident which occurred during
carrying out such inherently dangerous and hazardous activity, then the person who is carrying out
such activity will be held absolutely liable.

Q13(a) In nuisance the interference is consequential whereas in trespass it is direct-

Comment.(6 marks)
Ans: 1) A person in possession of a property is entitled to its undisturbed
enjoyment as per law. However, if someone else’s improper use or
enjoyment in his property ends up resulting into an unlawful interference
with his enjoyment or use of that property or of some of the rights over it, or
in connection with it, we can say that the tort of nuisance has occurred.

2) The word “nuisance” has been derived from the Old French word “nuire”
which means “to cause harm, or to hurt, or to annoy”. The Latin word for
nuisance is “nocere” which means “to cause harm”.Nuisance is an injury to
the right of a person’s possession of his property to undisturbed enjoyment
of it and results from an improper usage by another individual.

3)In the case of Radhey v Gur Prasad, Mr Gur Prasad Saxena and another
filed a suit against Mr Radhey Shyam and five other individuals for
permanent injunction restraining the defendant from installing and running a
flour mill in the premises occupied by the defendant. Gur Prasad Saxena filed
another suit against Radhey Shyam and five other individuals for a
permanent injunction from running and continuing to run an oil expeller
plant. The plaintiff has alleged that the mill was causing a lot of noise which
in turn was affecting the health of the plaintiff. It was held that by running a
flour mill in a residential area, the defendant was causing a nuisance to the
plaintiff and affecting his health severely.

4) Trespass to person is a tort which is frequently committed in everyday

life. It is basically unreasonable interference with body of a person which can
be committed either by causing actual harm or by just causing an
apprehension of force.

5)The tort of trespass to person has developed as it is today is a result of

many changes and modifications. In early English law, a physical interference
with the person was given special protection, partly to avoid the unhappy
consequences of people taking the law into their own hands by revenge
attacks. Untill the abolition of the old forms of action in the 19th century;
direct attacks upon the person were protected by the action of trespass,
which required no proof of damage. Indirect interference with the person was
protected by the action on the case, which did require proof of damage.

OR

(b) Discuss the rule of ‘Strict liability’ with exceptions.(6 marks)

Ans: 1) Some activities may be so dangerous that the law has to regulate them with
extreme consequences. For example, the law may sometimes levy a penalty even if
damage occurs without somebody’s fault. This is exactly what happens under the
rule of strict liability. This rule is very important for commercial and other activities
that have the potential to result in horrific damages.

2) The strict liability principle is an extremely important concept under the law of
torts. The basis of this principle basically lies in the inherent harm that some
activities can inflict. For example, leaking of poisonous gasses, as it happened in
the Bhopal Gas Tragedy, will attract this rule.The underlying principle of
compensation in torts generally depends on the extent of precautions a person takes.
Hence, if he takes abundant precautions to prevent some harm, the law may exempt
him from paying damages. This principle, however, does not apply to strict liability.

3) Under the strict liability rule, the law makes people pay compensation for
damages even if they are not at fault. In other words, people have to pay
compensation to victims even if they took all the necessary precautions. In fact,
permissions allowing such activities often include this principle as a pre-condition.

4) The rule of strict liability originates from the famous English case of Rylands v.
Fletcher. According to the facts of this case, the defendant owned a mill and wanted
to improve its water supply. For this purpose, he employed a firm of reputed
engineers to construct a reservoir nearby.The problem occurred when the reservoir
was so full one day that the water from it started over-flowing. The water flowed
with so much force that it entered the plaintiff’s mine and damaged everything.The
engineers, who were independent contractors of the defendant, were clearly at fault.
This is because they were negligent in constructing the reservoir. This is exactly
what the defendant also said for avoiding his liability.The court, however, disagreed
and explained the strict liability rule. It said that when somebody keeps something
on his property for his benefit, it should not escape and affect others. In case it so
escapes, the owner of that thing must compensate the victim even if he was not
negligent.

5) Exceptions to strict liability-

 Act of God

 Wrongful act of a third party

 Plaintiff’s own fault

SECTION C
 Q14(a) Define tort and explain the essentials elements of tort with the help
of case laws and examples.(10 marks)

Ans: 1) The word tort originates from the French language. It is equivalent to the English word
“wrong” and Romanian law’s term “delict”. It is derived from the Medieval Latin word “tortum”
which means “wrong” or “injury” which itself was further developed from the Old Latin word
“torquere” which means “to twist”. It is a breach of duty which amounts to a civil wrong.

2) A tort arises when a person’s duty towards others is affected, an individual who commits a tort is
called a tortfeasor, or a wrongdoer. And where there are multiple individuals involved, then they are
called joint tortfeasors. Their wrongdoing is called as a tortious act and they can be sued jointly or
individually. The main aim of the Law of Torts is the compensation of victims.

3) According to John Salmond, He addresses tort as being only a civil wrong which has unliquidated
damages (those damages for which there is no fixed amount) in the form of remedy and which is not
just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial
obligation.

4) According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty primarily
fixed by the law, this duty is towards the other people generally and its breach is redressible by an
action for unliquidated damages.

5) Objectives of a tort

1. To determine rights between the parties to a dispute.

2. To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
3. To protect certain rights of every individual recognized by law i.e. a person’s reputation.
4. To restore one’s property to its rightful owner i.e. where the property is wrongfully taken
away from its rightful owner.

6) Essential Elements of a tort

Three essential elements which constitute a tort are,

1. A Wrongful act or omission, and

2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
It should be of such a nature that it should give rise to a legal remedy in the form of an action for
damages.

7) Bhim Singh v. State of J and K, where the plaintiff was a Member of the parliament and was not
allowed to enter into the premises of the Assembly election by a police constable, hence his legal right
was infringed.
8) A legal wrongful act is one which affects one’s legal right, the wrongful act must be one recognized by law,
the act must be in violation of the law to be a legal wrongful act. An act which seems Prima facie (based on the
first impression) innocent may also end up infringing somebody else’s legal right, innuendo (Where a statement
is said by an individual which may be Prima facie innocent but may also have a secondary meaning which can
harm the reputation of another in the eyes of the public or the person who comes to know of such information)
is an example of this. A duty of care is one which is imposed on every individual and requires a
standard of reasonable care that he could see as being harmful towards others. Hence, a duty imposed
by law is a duty which is legally enforceable in the Indian courts.

OR

(b)Discuss Nature, Scope, Origin and Evolution of Law of Torts in India.(10 marks)

Ans: The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term
‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or
wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in
a straightforward manner and when one deviates from this straight path into crooked ways he has
committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical
term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was
introduced into the English law by the Norman jurists. Tort now means a breach of some duty
independent of contract giving rise to a civil cause of action and for which compensation is
recoverable. In spite of various attempts an entirely satisfactory definition of tort still awaits its
master. In general terms, a tort may be defined as a civil wrong independent of contract for which the
appropriate remedy is an action for unliquidated damages.

The expression justice, equity and good conscience was interpreted by the Privy Council to mean the
rules of English Law if found applicable to Indian society and circumstances. The Indian courts
before applying any rule of English law can see whether it is suited to the Indian society and
circumstances. The application of the English law in India has therefore been a selective application.
On this the Privy Council has observed that the ability of the common law to adapt itself to the
differing circumstances of the countries where it has taken roots is not a weakness but one of its
strengths. Further, in applying the English law on a particular point, the Indian courts are not
restricted to common law.

The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union
of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which
will adequately deal with new problems which arise in a highly industrialized economy. We cannot
allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the
matter of that in any foreign country. We are certainly prepared to receive light from whatever source
it comes but we have to build our own jurisprudence.

It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try
all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of
justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9
for developing this field of liability.

Historically tort had its roots in criminal procedure. Even today there is a punitive element in some
aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction
between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil
wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement
of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for
their object the punishment of the defendant for some act of which he is accused. Sometimes the same
wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel,
theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and
also compelled in a civil action to make compensation or restitution.

Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate
remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort
merely because the civil remedy of injunction may be available at the suit of the attorney general, but
only in those exceptional cases in which a private person may recover damages for loss sustained by
him in consequence thereof. However it has to be born in mind that a person is liable in tort
irrespective of whether or not an action for damages has been given against him. The party is liable
from the moment he commits the tort. Although an action fro damages is an essential mark of tort and
its characteristic remedy, there may be and often other remedies also.

Q15(a) Explain ‘contributory Negligence’ and ‘Plaintiff the wrongdoer’ as general defenses,
with decided case Laws?(10 marks)
Ans: When a plaintiff brings an action against the defendant for a tort
committed by him, he will be held liable for it, if there exists all the essential
ingredients which are required for that wrong. But there are some defences
available to him using which he can absolve himself from the liability arising
out of the wrong committed. These are known as ‘General defences’ in the
law of tort. 

The defences available are given as follows:

 Volenti non fit injuria  or the defense of ‘Consent’

 The wrongdoer is the plaintiff

 Inevitable accident
 Act of god
 Private defense
 Mistake
 Necessity
 Statutory authority
 There is a maxim “Ex turpi causa non oritur actio” which says that
“from an immoral cause, no action arises”. 
 If the basis of the action by the plaintiff is an unlawful contract then he
will not succeed in his actions and he cannot recover damages.
 If a defendant asserts that the claimant himself is the wrongdoer and
is not entitled to the damages, then it does not mean that the court
will declare him free from the liability but he will not be liable under
this head.
 contributory negligence, in law, behaviour that contributes to one’s
own injury or loss and fails to meet the standard of prudence that one
should observe for one’s own good. Contributory negligence of the
plaintiff is frequently pleaded in defense to a charge of negligence.
 Contributory negligence usually arises in a lawsuit in which a plaintiff
has accused a defendant of negligence. The defendant may then
charge the plaintiff with contributory negligence. At common law, if
the defendant proves this charge by a preponderance of evidence, the
plaintiff cannot recover any damages—even if the defendant was
negligent—because the contributory negligence breaks the causal
connection between defendant’s negligence and plaintiff’s injury or
loss. In English law since the Law Reform (Contributory Negligence)
Act (1945) and in many states in the United States, if the plaintiff is
shown to have contributed to the injury, recovery may still be
allowed, but provision is made for an equitable reduction of damages.

OR

(b)What is Professional Negligence? Discuss Medical

Negligence with the help of Case Laws.(10 marks)

Ans:1) Negligence, in common terms, means carelessness. The most

common professionals who face this type of negligence: Bankers,
Manufactures, Repairers and Builders, Physicians and Surgeons,
Solicitors, Counsel, Directors of Companies, Carriers, Innkeepers and
Hotelkeepers. The negligence committed by these professionals is
known as Professional Negligence. It becomes professional negligence
when the responsibilities of a professional fail to reach a standard
level. The practice of a profession or art which requires some special
experience, skill, and ability by carrying a reputation for that practice
to the extent is required.

2) Professional negligence is a very complicated area of law, it takes

place when a professional breaks down to perform his responsibilities
to a required standard. Before defending a claim including allegations
of professional negligence, there should be a sought of legal advice in
all the cases. 

3) The manufacturer owes a duty of care to all the customers who are
expected to use his products. In case, if the products which are
dangerous like those which are defective that may cause extensive
harm, then the duty can be owned to anyone who will reasonably be
affected by the defect in the product. 

4) A solicitor will be held liable for the outcomes of non-observance or

ignorance of the rules of practice of the court. He will also be liable for
the lack of requirement of care in the preparation of the cause for trial
and for the mismanagement of the conduct of a cause that is usually
administered to the profession of his department. A suit can be filed
for damages against a solicitor on the ground that he failed to lodge
and prosecute an appeal because if he would have done without
negligence, then his client may get justice.
5) Medical negligence is a combination of two words. The second word solely describes the meaning,
though the meaning of negligence has not been described in a proper way but it is an act recklessly
done by a person resulting in foreseeable damages to the other. Negligence is an offense under tort,
IPC, Indian Contracts Act, Consumer Protection Act and many more.

6) Medical Negligence basically is the misconduct by a medical practitioner or doctor by not

providing enough care resulting in breach of their duties and harming the patients which are their
consumers.

7)  A professional is deemed to be an expert in that field at least; a patient getting treated under any
doctor surely expects to get healed and at least expects the doctor to be careful while performing his
duties. Medical negligence has caused many deaths as well as adverse results to the patient’s health.

8) Medical malpractice occurs when a health-care provider strays from the recognized “standard of
care” in the treatment of a patient. The “standard of care” is defined as what a reasonably
prudent medical provider would or would not have done under the same or similar circumstances.

9) Essentials of medical negligence-

 Doctor’s duty to attend the patient with care

 A duty of care in deciding whether to undertake the case

 A duty of care in deciding what treatment to give
 A duty of care in the administration of the treatment
 Doctor acting in a negligent manner

10) In Gian chand v. Vinod kumar Sharma it was held that shifting of the patient from one ward to
another in spite of requirement of instant treatment to be given to the patient resulting in damage to
the patient’s heath then the doctor or administrator of the hospital shall be held liable under
negligence.

11) Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart
revealing information about the amount of anaesthesia ad allergies of the patient should be mentioned
so that an anaesthetist can provide ample amount of medicines to the patient. The doctor in above case
failed to do so as a result of the overdose of anaesthesia the patient died and the doctor was held liable
for the same.

Q16(a)What is meant by False Imprisonment? Explain essentials of False Imprisonment with

the help of case Laws and examples.(10 marks)

Ans: