MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-I Semester-I: Academic Year: 2021-2022

First Open Book Assessment, October-2021

Course Code and Name: 1.2 Law of Torts

Name of Student: Shrida Supunya UID: UG21-108

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Answer 3.
In the given case, ABN Petro-Chemical industry can be sued under the principle of ‘absolute’
or ‘no-fault’ liability add no defence or exceptions will be available to them because there was
an escape of a hazardous substance.

Why the principle of absolute liability will be applicable in this case?

The rule of absolute liability was given by the honourable Supreme Court of India. 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. There will be no
defence available to him unlike strict liability and he cannot contend that he had taken all the
necessary and possible precautions. Previously, there was the rule of strict liability only which
was laid down by the House of Lords in the case of “Ryland vs. Fletcher” (1868 L.R. 3 Ex.
330) in the 19th century. The Supreme Court of India came up with the rule of absolute
liability because it felt that the present rule of strict liability isn’t sufficient to meet the new
challenges of today's day and age and is inappropriate in Indian perspective. Thus, the
Supreme Court evolved a new rule by creating absolute liability, for the damages caused by
dangerous substances.
The principle of absolute liability will apply in this case because there was a leak of a
hazardous gas from the ABN petrochemical industries, which got spread into nearby areas
and caused harm to a lot of people - causalities of around 2000 people and critical diseases to
other people. Because there was a hazardous substance involved which escaped from the
premises of the industry and caused harm, the rule of absolute liability will be applicable and
no defence will be available to the defendant.

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Case law analysis with present case -:
 M.C. Mehta vs. Union of India: This case is also known as the oleum gas leak case.
The facts of this case were that on 4th and 6th December in 1985, oleum gas was lead
from one of the units of Shriram foods and fertilizers industries in Delhi and in this
leakage one advocate practising in the Tis Hazari court died and several others were
affected. A case was brought under article 32 of the constitution through a PIL
because the court thought that the applications for compensation raised certain
important issues and those issues should be addressed by a constitutional bench. Also,
the court had in mind that it was within a period of a year that such an incident was
happening again, like the Bhopal gas tragedy which had taken place a year before
only, killing more than 300 people and affecting lacs of others with serious diseases. It
was after this case when the court came up with the rule of absolute liability and the
court held “where an enterprise is engaged in a hazardous and inherently dangerous
activity and harm results to anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, for example, in escape of toxic
gas the enterprises strictly an 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 vis-a-vis the tortious principle of strict liability under the rule of Ryland vs.
Fletcher”. Just like the oleum gas leak case, there is a leak of hazardous gas in the
given case of ABN Petro-Chemical industries also, which took away 2000 person's
lives and harmed several others with serious diseases.
The facts of the case given in the question are similar to that of the oleum gas leak
case because just like there was hazardous oleum gas leak from the Shriram food
industries, in the given case also there is a leak of a hazardous gas which caused harm
and resulted in the death of 2000 people and gave serious diseases to several others.

 Union Carbide Corporation vs. Union of India: On the night of December 2/3,
1984, an unparalleled disaster was triggered by an extremely toxic gas from the Union
Carbide factory in Bhopal, resulting in the deaths of over 3,000 people and injuring
around 6 million people, most of which were severe and permanent. The Government
of India first files a suit against the union carbide corporation (UCC) in the United
States District Court of New York but it was dismissed by that court on the grounds
that the Indian courts are more suitable for such an action. Therefore, the government

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 filed a suit of compensation in the district court of Bhopal which order UCC to pay an
interim relief of rupees 350 crores to the victims. Later the Supreme Court of India
directed the payment of nearly 750 crores to the gas victims.
The facts of the case given in the question match with this case also and thus the ABN
Petro-Chemical industries should be sued on the same grounds, that is of absolute
liability and no defence will be available to them.

Conclusion -:
From the above stated reasons and case law analysis we can conclude that ABN Petro-
Chemical industries should be held strictly and absolutely liable for the leak of that hazardous
gas and no defence will be available to them as their operations included keeping an
inherently dangerous and hazardous substance on their land which escaped to cause harm to
the people nearby, and such type of cases are covered under absolute liability as seen in the
cited case examples.
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Answer 4.

In the given case, Lakshmi Real Estate brokerage company is sued by Natasha on account of
master is liable for wrongful acts of its servants, that is Mr. Robert in this case. The rule of
vicarious liability that is master is liable for the wrongful acts offered servants is applicable
here because Mr Robert was authorised to represent the company in business dealings with its
customers and this wrongful act was committed by him during his course of employment.

WHAT IS VICARIOUS LIABILITY OF A MASTER FOR THE TORTIOUS ACTS

OF HIS SERVANT AND WHY IS IT APPLICABLE HERE?
Vicarious liability is the liability of a person for an act committed by some other person
which arises as a result of the relation between these two persons. The main relations which
cause vicarious liability to arise are -: Master and Servant, Partners in a firm, Principal and
Agent, Owner and Independent contractor, and a Company and its Directors.
Vicarious liability of master for the tortious acts of a servant Arises when a servant does a
wrongful act in the course of his employment. This wrongful act of the servant is deemed to
be the act of the master as well. This liability is based on 2 Latin maxims:

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  "Respondeat superior" which translates into "let the principle be liable"; this means
that the master is in the same position as if he had done the act himself.
 "Qui facit per alium facit per se" which translates into "he who does an act through
another is deemed in law to do it himself"; this means that whenever a person gets
something done by another person then the person is viewed to be doing such an act
himself.
There are two essential elements also which need to be fulfilled in master servant vicarious
liability which are: [i] the tort should be committed by the servant, [ii] the tort committed by
the servant should be during his course of employment. There are two tests for determining
the master-servant relationship. They are as follows -
 Hire and Fire Test: One can know that whether someone is their servant or not by
knowing if they can hire or fire that person and does that person receive any
salary/remuneration from them.
 Direction and Control Test: In this, master-servant relationship is checked by seeing
whether a person can give direction and has control over the other person's work.
The difference between a servant and an independent contractor is that an independent
contractor is someone who is employed to perform a certain task and is neither bound to
follow the instructions given by the master nor the master can determine the way in which his
job is to be done. While a servant works under his master's directions and he has full control
to determine the way in which his job has to be done. Therefore, the master is not liable for
the wrongful acts of an independent contractor but is liable for the wrongs of his servant.
A vicarious liability of the master arises in the following circumstances:
 Wrong done due to an expressly authorised by the master
 Wrong done in furtherance of the profile engaged for
 Wrongful delegation of duty
 Wrongs done in a functional connect
 Wrong due to negligence of the servant
 Authorised act done wrongfully or fraudulently by the servant
The rule of Vicarious liability of the master for the tortious acts of his servant is suitable in
the given case because Mr Robert was a servant in Laxmi Real Estate Brokerage Company
and he was authorised to represent the company in business dealings with its customers. We
can determine the master-servant relationship between Laxmi Real Estate Brokerage
Company and Mr. Robert by considering the fact that this company had a control over the

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way in which Mr. Robert had to do his job and was an authorised representative of the
company. Thus, when Natasha approached this company for selling out her house property
and Mr. Robert was sent as a representative of the company, Mr. Robert’s fraudulently taking
Natasha's sign on a gift deed prepared by him in his own name was a wrongful act committed
during the course of his employment. It was an authorised act done wrongfully. And this is
the reason why the rule of Vicarious Liability of the Master for the Tortious Acts of his
Servants is applicable in the case.

CASE LAWS RELATED TO THIS RULE OF VIACRIOUS LIABILTY

Lloyd vs. Grace Smith & Co. (1912) A.C. 716: In this case the plaintiff, a widow, owned
1000 pounds as dues on a mortgage. She approached a Firm of Solicitors to get advice on
becoming rich. The Manager of the firm told her to sell her cottage and pay the amount of
mortgage. For this she authorised the manager to sell her property and collect the money on
her behalf, but that manager absconded with the money collected. Thereafter she sued that
Firm. The court held that the Firm was liable for the fraudulent act of the Manager because,
even though, his fraudulent act was not authorised, the manager was authorised to take her
signature and thus, it was within the course of employment and was an authorised act done
wrongfully. The rule of Vicarious Liability of the Master for the Tortious Acts of his Servants
was applied in this case.
The facts of the case given in the question are similar to that of Lloyd vs. Grace Smith & Co.
Case because in this case also an authorised servant of the Brokerage company fraudulently
sold the plaintiff’s property and misappropriated her money and therefore the rule of
Vicarious Liability of the Master for the Tortious Acts of his Servants should be appropriate
and applicable in this case too.

CONCLUSION
If a person shares a Master-Servant relationship with another person, he or she might be held
accountable for the wrongs committed by such a person. Because the servant performs the act
on behalf of his master, tort law stipulates that any wrongful act committed by the servant in
the course of his employment makes the master accountable. Concluding the answer, one can
understand well the concept of Vicarious liability of a master for its servant`s tortious acts in
the course of employment by referring to the definitions and examples given above.

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Answer 5.

WHAT IS A REMEDY?
Ubi Jus Ibi Remedium is a Latin phrase which translates into 'where there is a wrong, there is
a remedy'. When there is an infringement of somebody’s legal rights it is treatable by law and
this treatment is called a legal remedy. When an aggrieved person is restored the position that
they were enjoying before their rights were infringed or a tort was committed, they are said to
have been provided with a legal remedy. Several types of legal remedies are available which
can be categorised into types judicial remedies and extrajudicial remedies:
 Judicial remedies – When due procedure of law is followed by the aggrieved party to
gain the remedies.
 Extra-Judicial remedies – When the law is taken in their own hands by the aggrieved
parties to gain a remedy.

JUDICIAL REMEDIES
Judicial remedies are the remedies that a court of law provides to an aggrieved party, as
suggested by its name. The three main types of judicial remedies are as follows:
(I) Damages – Damages are the most important remedy available to a plaintiff. They are
amount of money paid to the plaintiff to help them recover the loss suffered and to
bring them back to the position in which they were previously. They are also of
various kinds:
a. Nominal Damages are the ones where the plaintiff suffers from a legal injury
but not an actual damage or loss. It is implied in the cases off injuria sine
damnum. For example, in the case of Ashby vs. White, the plaintiff was
prevented from voting but ultimately the candidate he wanted to vote for won.
But there was still an infringement of his legal right of voting and thus he was
paid nominal damages. The amount of damage in nominal damages is very less
because of no actual loss.
b. Contemptuous damages are the one where there is an actual loss or damage
but which id so trivial that the court awards very little amount of damages to

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 the plaintiff. For example, if is A’s dog enters B’s house and excretes there,
and ‘B’ steps on it and brings a suit against ‘A’ out of aversion then the court
will award contemptuous damages.
c. Compensatory damages are given to help the plaintiff reaches original
position and not to punish the defendant. They can be used in the cases where
there is monetary loss which can be easily calculated and thereafter that
amount can be paid to the plaintiff so that he can replace or restore the product
for goods with this amount.
d. Aggravated damages are awarded for the extra harm which could not be
compensated through compensatory damages because they couldn't be the
calculated in monetary terms like pain, loss of self-esteem, etc.
e. Punitive damages, also known as exemplary or vindictive damages, are the
ones awarded in the cases where a defendant has to be punished and an
example has to be set for others to deter them from committing such a wrong.
For example, in the case of Bhim Singh vs. State of J & K, the supreme court
awarded punitive damages because there was a wrongful detention of Bhim
Singh.
f. Prospective damage is the compensation given for a damage which has not
actually happened but will be quite likely the result of a defendant’s wrongful
act. An example is the case of Subhash Chandra vs. Ram Singh in which
Subhash, a 7-year-old, was hit by a Punjab government bus being driven by
Ram Singh. Subhash suffered many injuries which resulted in his permanent
disability and thus, he was awarded prospective damage considering the
probable future loss because of his incapacity and diminished work capacity.

(II) Injunction - injunction is a court order in which instead of compensating the plaintiff,
the defendant is directed to stop the commission of a wrongful act (Prohibitory
Injunction), or do something positive (Mandatory Injunction), so to reverse the
results off his wrongful act. The plaintiff has to prove that he suffered damages or
there is a possibility of suffering damages to receive injunction against the defendant.
There are 2 types of injunctions, Temporary Injunction, which continues a specified
time and Perpetual Injunction, in which the defendant is enjoined from asserting a
right for ever. In the case of Hindustan Pencils Pvt. Ltd. Vs. India Stationery Products,
Hindustan Pencils Pvt. Ltd. Filed a suit of perpetual injunction against the defendant

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 for the infringement of their copyright on “Nataraj” products. The court ruled in
favour of the plaintiff.

(III) Specific Restitution of Property - The court orders to restore back to the plaintiff the
specific property when he has been wrongfully dispossessed of that movable or
immovable property. For example, recovery of land by ejectment of the defendant.

EXTRA-JUDICIAL REMEDIES
Remedies available outside the court of law are called extra judicial remedies. A person can
have these remedies by his own strength or self-help. Various kinds of extra judicial remedies
are as follows -:
(I) Abatement of nuisance - An owner or occupier of land is allowed to terminate the
nuisance which is affecting his land. Before that abatement is made, a notice should be
sent to the other party unless the nuisance is of such a degree which threatens life or
property. The appointment which is less mischievous should be followed. For
example, if A and B are neighbours and there is a guava tree in A's house which is out
growing into B’s house then, after giving do notice to A, B can cut the branches which
are causing him nuisance.
(II) Expulsion of trespasser - The immediate processor of a property can expel a
trespasser from his property by using a reasonable amount force.
(III) Re-entry on land - The owner of a property can re-enter his property after removing
the trespasser using a reasonable force.
(IV) Re-caption of goods - The owner of a girl can recapture his quotes from any person
who has unlawfully possessed them and need not ask the court for assistance and
rather, can take law in his own hands.
(V) Distress damage feasant - The owner of a property is entitled to capture another
party’s beasts/animals until he is compensated for his loss, if they have moved to his
property and are spoiling his crops.

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