TORTS

 Tort definition – Civil wrong, between two individuals, with unliquidated damages, specifically
containing a breach of duty that is fixed by law. It is an infringement of a right in rem, and
justifies a right to compensation. It is found in common law, however is uncodified. Furthermore,
torts do not involve breach of contract or trust.
 Torts are broadly classified under three sections
o Negligence
o Intention
o Strict Liability
 For a tort to be committed there are two essentials:
o Act or omission of an act that is recognized by law on the defendant side.
o Act or omission should lead to damages or breach of legal rights of the plaintiff.

LAW OF TORT V LAW OF TORTS

 Law of tort
o Every wrongful act is treated as a tort
o Winfield – Injury to neighbour allows him to sue in tort whatever the wrong may be and
he may be liable if cannot provide legal justification
 Ashby v White – ubi jus ibi remedium (where there is a right there is a remedy –
when a person’s rights are violated they have an enforceable right to obtain
compensation before a court), torts are infinitely various and not confined. This
theory is supported in courts which create new torts.
 Law of torts
o A number of specific wrongs
o Salmond – no law of tort, only torts. Pigeon-hole theory, where each labelled tort is a
pigeon-hole and only if the case fits in one will the case be considered.
o Dr. Jenks - agreement, however new torts can be created but these torts have to have
substantial similarities to ones already in existence.
o Heuston – Salmond never believed that torts is a closed system.
o Glanville Williams - Just because law is made of pigeon-holes doesn’t mean new pigeon
holes cannot be made. From a narrow point of view, the second theory will suffice
however from a broad point of view the first is valid.

TORTS AND OTHER WRONGS

 Tort and Crime

o Less serious wrongs are private, civil wrongs while more serious are public, criminal.
Private wrongs are infringements of private rights belonging to individuals while public
wrongs are breaches of public duty and behaviour and are thus regarded as crimes.
o Certain crimes are both tortious and criminal, such as assault, negligence, defamation and
nuisance. When the wrong seriously affects one person or affects a large enough group
then it is considered criminal. If a person obstructs a house it is a tort, however if he
obstructs a public road it is a crime.
o In torts the injured party files the suit himself as the plaintiff, and the suit is withdrawable
at any time. In crime, the case would be the defendant vs the state, and this cannot be
settled.
 o Torts are settled by compensation, crime by punishment.
 Tort and Breach of Contract
o Breach of contract is a breach of duty undertaken by the parties themselves. The
agreement, violation and breach is all made by free consent. Torts however are breaches
of duties imposed by law and not the parties involved.
o In contracts the parties involved owe a duty of care only to each other and not to the
public at large. In the case of Donoghue v Stevenson, the manufacturer owes a duty of
care to each consumer.
o Damages can be liquidated in breach of contract however in torts it is unliquidated.
 Tort and Breach of Trust
o Breach of trust is a division of the law of property which is detachable from other forms
of law.
o Damages in breach of trust is liquidated.
 Tort and Quasi-Contract
o If a person gains a benefit or an advantage which another person was entitled to, then the
law may compel the former to compensate the latter. These are quasi-contracts as the law
implies a contract between the two parties though there is no formal contract.

OMISSION AND COMMISSION

 A person must do something which he was not expected to do or omit to do something he was
expected to do.
 The wrongful act or wrongful omission is something that must be recognized by law.

INJURIA SINE DAMNUN

 Infringement of a legal right without damage.

 Thus the test is not whether the plaintiff has suffered damages but rather if any of his legal rights
have been violated.
 These are two kinds of torts, those actionable without proof of damage such as trespass and those
which do require proof.
o Ashby v White – Plaintiff was a qualified voter, however he was wrongfully refused
voting rights by the defendant. Though the candidate he wished to vote for won he still
claimed damages as his legal right to vote was violated, which the court upheld.
o Bhim Singh v State of J&K – the plaintiff, an MLA from J&K, was wrongfully detained
from the police and was not produced before the magistrate. He was thus prevented from
attending the Assembly session and lost the right to personal liberty under Art. 21, and
thus could claim damages.

DAMNUN SINE INJURIA:

 Damage with no interference to legal rights, and thus not actionable.

o Gloucester Grammar School case – Schoolmaster sets up a rival school, forcing the first
school to drop its prices causing a loss but no legal violation.
o Bradford Corporation v Pickles – Defendant derived water from his own land,
discolouring and diminishing the entire pool thus causing damage to the plaintiff but not
directly violating any legal rights of the plaintiff.
 o Tomlinson v Congleton Borough Council – John Tomlinson, plaintiff, dived into an
artificial lake and hit his head, leaving him tetraplegic. He brought claim against
Congleton Borough Council stating that there was not adequate warning of diving and
claiming loss of earnings, loss of quality of life and cost of care. The council (defendant)
however had had done everything reasonably possible to ensure the safety of visitors and
the lake itself was not the danger, so much as the disregard to warnings and the actions of
the public. The council’s argument was accepted on two grounds; first that the claimant’s
injuries were not due to the ‘state of the premises’ and also on the grounds of public
policy as deciding in the claimant’s favour would discourage the council from providing
facilities for individuals to enjoy.

NEGLIGENCE

 Definition – breach of duty caused by omission of an act which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs would do, or
commission of an act which a prudent and reasonable man would not do. There are three
constituents of negligence:
o A legal duty to exercise due care by the defendants towards the plaintiffs within the
scope of duty (duty of care)
o Breach of said duty
o Consequential damage
 Negligence can have three broad meanings:
o State of mind, in which it is opposed to intention
o Careless conduct
o Breach of duty to take care that is imposed by common or statute law.
 In law of torts, negligence has two primary definitions:
o A mode of committing certain torts such as negligently committing trespass, denoting
a mental element.
o A separate tort, meaning a conduct which creates risk of causing damage. Donoghue
v Stevenson and Heaven v Pender treat negligence as a separate tort.
o Duty of care consists of reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour, where neighbour is any
person so closely and directly affected by the acts that there reasonably ought to be
contemplation as to how they would be affected.
 Donoghue v Stevenson – Bottle of ginger beer contained a decomposed snail
in it. Lady, after drinking half, notices and suffers from gastroentitis. She
brings action against the manufacturer. Manufacturer claims that he holds no
duty of care to her, however the House of Lords holds that the manufacturer
did hold a duty to take care that the bottle did not contain any noxious matter
and that he would be held liable for that breach of duty.
 Langridge v Levy – Man sold a gun he knew was dangerous for use by
purchaser’s son. Gun exploded in son’s hands, gunmaker held liable for
breach in duty of care owed to the purchaser and his son.
 George v Skivington – Noxious hairwash bought and gifted to another.
Damage suffered by the user, raises a claim against the manufacturerx. Claim
successful, damages awarded.
 Anns v Merton LBC - Anns test – The builder built a building which had
sloping floors, cracks and other defects. The plaintiffs claimed that the
building was built on bad foundations out of negligence, and thus they
deserved compensation. The House of Lords decided that there was a duty of
care which was breached. Furthermore the Anns test was made on the basis
of this case which determines the duty of care on two points:
 Sufficient relationship of proximity based upon foreseeability.
 Reasons as to why there should not be a duty of care.
 Caparo Industries v Dickman – Fidelity plc was a target of takeover by
Caparo. Fidelity’s directors made an announcement as to the profits, on the
basis of which Caparo went ahead with the takeover. Once it took over it
discovered that Fidelity was in worse shape than projected by the
announcement, and thus sued Dickman for negligence in preparing accounts.
For this case a three-fold test was made:
 Harm must be reasonably foreseeable as a result of the defendant’s
conduct
 Parties must be in a relationship of proximity
 Must be fair, reasonable and just to impose liability.
 Thus under these three principles the Caparo test determined that Caparo was
not held a duty of care.
 Sutherland Shire Council v Heyman – Plaintiff bought a house which had
bad foundations, sued the council for negligence in approving plans for the
erection of the house and in failing to ensure that the land will be inspected.
This case held that all public authorities could be held liable for negligence. It
furthermore held that the law should develop categories of negligence
incrementally and with analogy, established categories rather than by a
massive extension of a prima facie duty of care restrained only by indefinable
‘considerations’ which ought to negate, reduce or limit the scope of duty.
 Home Office v Dorset Yacht Co - Juvenile offenders were put under
supervision of officers. The officers left them unsupervised one night and
thus these juveniles escaped, stole yachts and caused damage by crashing
these yachts. The supervising officers were held liable as it was reasonably
foreseeable that the juveniles would escape if left unsupervised. This case
diluted the sense of proximity, however still showed a clear duty of care and
had enough proximity, thus causing the officers to be held liable.
 Jacob Mathew v State of Punjab – Patient admitted to a hospital due to
breathing problems. Calls nurse at night saying he had problems breathing.
Nurse calls a doctor who arrives 20 minutes late however the patient
recovered by then. After sometime the patient again had problems breathing.
No gas cylinders were nearby, and even after one was found there were no
doctors around to operate it. Patient dies from lack of oxygen. Three
principles of medical negligence:
 Whether the doctor in question possessed the medical skills expected
of an ordinary skilled practitioner in the field at that point of time
 Whether the doctor adopted the practice in the case that would be
adopted by such a doctor of ordinary skill in accord with one of the
 responsible bodies of opinion of professional practitioners in the field
and
 Whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when
the events leading to the allegation of medical negligence occurred
and not of the time when the dispute was being adjudicated.
 Breach of duty is non-observance of due care which is required in a particular situation . The
standard is that of a reasonable man or an ordinarily prudent man.
o Standard of care requires three points:
 Importance of the object to be obtained
 Latimer v AEC Ltd - Heavy rainstorm in factory, causing oily
substance to spread. Caused floor to be slippery, thus the employees
spread sawdust. Plaintiff slipped anyway, however the defendant
acted responsibly and thus were not held liable.
 Magnitude of risk – Greater magnitude of risk entails greater requirement of
prudence.
 Surendra Shetty v Sanjiva Rao – Drivers in school zones should
have greater responsibility to control speed of vehicle so as to stop
the vehicle. In this case a schoolboy of 9 years old suffered severe
injuries when a car crashed into him. The driver was held for rash
and negligent driving.
 Bolton v Stone – Plaintiff stood near a cricket ground. A ball flew
over and hit him. Due to the likelihood of injury of people near such
a well-established cricket club on the road was so slight, as well as
the likelihood of a person standing near the cricket club to be hit that
the club could not be held liable.
 Mullin v Richards – Plaintiff and defendant were fencing with
plastic rulers. One shattered and hit the plaintiff’s eye, causing
blindness in that eye. She brought a claim, however it was rejected as
the standard of behaviour of reasonably prudent 15 year olds would
not include this much foresight and thus they were not held liable.
 Roberts v Ramsbottom - Ramsbottom drove into Roberts as she
was emerging from her car, injuring her, her daughter, and wrecking
her car. Shortly before he had rear-ended a van and knocked a boy
off his bicycle, he had had a minor stroke that caused him to lose
control of his actions, which was responsible for these actions. He
had no reason to expect that he had had a stroke as he had never had
any previous symptoms and did not realize at the time that he was
unfit to drive. Ramsbottom claimed that he was acting reasonably
and was not responsible for his actions as a reasonable person would
not expect to be impaired in this way. The courts held that due to him
having some consciousness, he was liable for his actions. In order to
escape liability there must be a total loss of consciousness.
 Manfield v Weetabix - Tarleton, an employee of Weetabix, did not
know that he had a condition that caused his brain to malfunction
when his blood sugar was low. He caused a series of accidents after
driving while hypoglycemic. He was found liable at trial which he
 appealed, which he won. The court found that the employee could
not know that his actions were impaired and thus could not be held
liable. This thus overturned the Roberts v Ramsbottom case.
 Amount of consideration – court discretion

RES IPSA LOQUITOR

 Prima Facie case of negligence, direct or circumstantial evidence that the defendant was
negligent.
 Mere proof that an accident occurred is not enough, but the peculiar circumstances
constituting the accident in a particular case may proclaim the clear negligence of the person
and thus fall under the maxim of res ipsa loquitor.
o CESCO v Prabhati Sahoo – Death by electrocution when a live conductor wire
hanging at a lower height which does not have the electricity cut off. Thus the case is
one of clear res ipsa loquitor.
o Pillutla Savitri v G.K.Kumar – Plaintiff’s husband was relaxing in front of his
tenanted premises when a portion of the construction fell on him, killing him. Res
ipsa loquitor was applied and the defendants, who were the construction workers,
were held liable.
o Municipal Corporation of Delhi v Subhagwanti – Clock tower collapses in
Chandni Chowk causing numerous deaths. Held that there was a special obligation of
the owner of adjoining premises for the safety of structures kept and it was no
defence for the owner to prove that he neither knew nor ought to have known of the
danger. The Municipal Corporation was held liable to pay compensation under the
doctrine of res ipsa loquitor as well.

CAUSATION IN FACT

 Sine qua non -The basic ‘but for’ test states that the defendant would be held liable only if the
plaintiff’s damages would not have happened ‘but for’ the defendant’s negligence.
 The defendant would not be held liable if the damage would have or could probably have
happened regardless of his conduct.
o Hotson v East Berkshire Health Authority – A 13-year-old boy fell and injured his
hip. Incorrect diagnosis was made, and the boy was later found to be suffering from
avascular necrosis. If it had been discovered earlier, then there was a 75% chance of
the boy suffering a hip disability due to the disease, however since the disease was
not discovered till too late, there was no chance of recovery. The boy’s family sued
for medical breach of duty, stating that they denied the boy the 25% chance of
recovery. The judge held that on the balance of probabilities, the boy was likely to
become disabled even if the disease was spotted earlier, and thus the plaintiff failed
on the issue of causation.
o Gregg v Scott – Reaffirms previous case. The defendant, Dr Scott, misdiagnosed
negligently the plaintiff's malignant cancer, stating it to be benign. This had the effect
of delaying Mr Gregg's treatment by nine months, reducing his chances of surviving
ten years from 42% to 25%. The plaintiff argued that the 17% loss was owed to him
by the defendant. While the judges in a 3-2 ratio decided in favour of the defendant,
Lord Nicholls dissented, stating that a patient should have an appropriate remedy
when he loses the very thing it was the doctor's duty to protect and to this end the law
 should recognise the existence and loss of poor and indifferent prospects as well as
those more favourable.
o Bonnington Casings v Wardlaw - The claimant contracted pneumoconiosis by
inhaling air which contained minute particles of silica during the course of his
employment. The defendant was in breach of a statutory duty in failing to provide an
extractor fan. Had they installed an extractor fan the number of particles of silica that
the claimant was exposed to would have been reduced, however, there would still be
some particles present. There were thus two possible causes: the guilty dust, which
should not have been in the working environment and the innocent dust, which would
have been present in any event. The burden of proof laid on the plaintiff to show that
the dust had a material contribution, and but for the defendant’s lack of installing a
fan, the defendant would not have contracted the disease. Thus the court decided that
the dust was material enough to warrant compensation.
o McGhee v National Coal Board - James McGhee was employed to clean out brick
kilns and developed dermatitis from the accumulation of coal dust on his skin.
Because there were no shower facilities at his workplace, he would cycle home each
day, increasing the risk that he would get dermatitis. Had his employer provided
shower facilities, the coal dust could have been washed off before cycling, reducing
the risk of contracting dermatitis. Due to the limits of scientific knowledge, it was
impossible to rule out the possibility that he hadn't contracted dermatitis during the
non-wrongful exposure to brick dust while working in the kiln. The House of Lords
held that the risk of contracting dermatitis was substantially increased due to a lack of
showering facilities, and thus the defendants were held liable. The implication of the
case was significant as it meant that a claimant need not demonstrate that the
defendant's actions were the "but for" cause of the injury, but instead that the
defendant's actions materially increased the risk of injury, and thus damage, to the
claimant.

CAUSATION IN LAW

 Novus Actus Interveniens – New act intervening. The chain of causation is broken. Even if the
defendant was negligent, there is no liability if there was a new, intervening act that breaks
the chain of causation between the original negligent act and the damage suffered by the
claimant. The snapping of chain of causation can be caused by either natural event or human
action.
o Human action – human action does not sever the connected sequence of acts, and thus
the mere human action does not prevent the sufferer from claiming damages from the
original wrongdoer. Secondly, it must be shown that to break the chain of causation,
there is some action that is unwarrantable and unreasonable. Thus a reasonable act
done by a person in consequence of the wrongful act of the defendant which results in
further damage does not break the chain of causation.
o Natural events - when negligence is followed by a natural event of such magnitude
that it erases the physical effects of the original negligence, the defendant’s liability
ceases at the moment in time when the supervening condition occurs.
o Claimant’s own conduct – When the claimant himself acts unreasonably and
negligently, causing damage to himself, the chain of causation is considered broken
and not the defendant for the first negligence.
 McKew v Holland & Hannen & Cubitts - the defendant's negligence
caused an injury to the claimant's leg that significantly weakened it. When
later attempting to descend a steep staircase without a handrail or assistance,
 the claimant broke the ankle in the same leg. The claimant knew that his left
leg might give way suddenly. He could see that these stairs were steep and
that there was no handrail. If he had given the matter a moment's thought, he
would have realised that he could only safely descend if he went extremely
slowly and carefully so that he could sit down if his leg gave way.
Alternatively, he should have waited for assistance. But recklessly he chose
to descend and, when he fell, he could not stop himself. That was taking an
unreasonable risk and, therefore, his behaviour broke the chain of causation.
o Third Party/sequential causes - Whether the acts of a third party break the chain of
causation depends on whether the intervention was foreseeable. The general rule is
that the original defendant will be held responsible for harm caused by a third party as
a direct result of his or her negligence, provided it was a highly likely consequence.
o Baker v Willoughby – Baker was knocked down by the defendant’s car, leaving him
with a stiff ankle of his left leg and reduced mobility and income. After the accident
but before the trial, Mr Baker was shot by a robber in his injured leg and the leg had
to be amputated. The defendant argued that the injuries he had caused to Mr Baker
were obviated by the later accident. His argument was based on causation: the
shooting was an intervening event, which was not caused by his negligent driving and
the amputation of the man's leg meant that the defendant could not be held
accountable for any loss, since the damage he had done previously no longer existed.
The court while rejecting such arguments did undercompensate Mr. Baker.
o Jobling v Associated Dairies - Associated Dairies negligence caused Jobling a back
injury that subsequently limited him to light work. After this Jobling developed a
spinal disease unrelated to the accident that caused him to be totally incapable of
work. At the lower courts he was granted damages up to the point he had to withdraw
from work which he appealed. The court held that the fact that even if there had not
been an accident there would still have been losses that cannot be disregarded.
Therefore, it seems like the damages will be limited to the period before the disease
was discovered, or at least reduced. However, he goes on to say that in cases where
there are two subsequent tortfeasors, it is unreasonable if the damage assessment to
the second party does not take the previous incapacitation into effect. The total
damage paid to Jobling must be the overall damage from all of the injuries, but
Associated Dairies should share this burden fairly depending on the circumstances.
Thus subsequent tortfeasors must have their damages assessed while taking the first
injury into account.

EGGSHELL SKULL

 Frailty of the injured party is not a defence. Thus the rule holds that a tort-feasor is liable for
all damages caused by his tortious or negligent act, regardless of whether he knew of the
defendant’s frailty or intended to cause him that extent of harm.
o Smith v Leech Brain - an employee in a factory was splashed with molten metal. The
metal burned him on his lip, which happened to be premalignant tissue. He died three
years later from cancer triggered by the injury. The judge held that as long as the initial
injury was foreseeable, the defendant was liable for all the harm.
o Page v Smith – Plaintiff and defendant get into minor car accident. Plaintiff previously
had mental disease which resurfaced upon the accident. Raises suit of nervous shock.
Plaintiff entitled to compensation despite the illness resurfacing being unforeseeable by
 the defendant under eggshell skull principle. Further held compensation can be awarded
under nervous shock even for unforeseeable psychiatric illnesses.

REMOTENESS

 A defendant is only liable for consequences which are not too remote from his conduct. No
defendant can be made liable ad infinitum for all consequences that follow from his wrongful
acts.
 There are two tests to determine remoteness:
o Reasonable foresight – if the consequences of the wrongful act could have been
foreseen by a reasonable man then they are not too remote.
o Test of directness – A person is liable for all the direct consequences of his wrongful
act, whether he could foresee them or not, because consequences that directly follow
an act cannot be too remote.
 Re Polemis & Furness, Withy – Defendant’s employee carried a plank. Due
to employee’s negligence the plank falls into the hold, causing a spark which
ignites the petrol in the ship causing an explosion. The Court held that the
defendant was liable. Although the fire itself may not have been foreseeable,
it was held that the defendant would nevertheless be liable for all direct
consequences of his actions. The court reasoned that if the act would or might
probably cause damage, the fact that the damage it in fact causes is not the
exact kind of damage one would expect is immaterial, so long as the damage
is in fact directly traceable to the negligent act and not due to the operation of
independent causes.
 Wagon Mound (No.1) - Overseas Tankship had a ship, the Wagon Mound,
docked in Sydney Harbour. The crew had carelessly allowed furnace oil to
leak from their ship. The oil drifted under a wharf thickly coating the water
and the shore where other ships were being repaired. Hot metal produced by
welders using oxyacetylene torches on the respondent's timber wharf fell on
floating cotton waste which ignited the oil on the water. The wharf and ships
moored there sustained substantial fire damage. In an action by Mort's Dock
for damages for negligence it was found as a fact that the defendants did not
know and could not reasonably have been expected to know that the oil was
capable of being set alight when spread on water. The dock owners knew the
oil was there, and continued to use welders. The council held that the
defendants were not liable as it was too unreasonable to foresee that there
would be a fire in water. Mort’s Dock would have been successful if they
claimed damages for the damage the oil did by falling off, but not for the fire.
Thus this case went in contrast to Re Polemis, as though the damages were
direct consequences, the council still did not make the defendant liable due to
unreasonable foreseeability.
 Wagon Mound (No. 2) - The defendants are the owners of the vessel Wagon
Mound, which was moored 600 feet from a wharf. The plaintiffs are owners
of ships docked at the wharf. Due to the defendant’s negligence, furnace oil
was discharged into the bay causing minor injury to the plaintiff’s ships.
However, the oil was then ignited when molten metal dropped from the wharf
and came into contact with cotton waste floating on the water’s surface. The
fire that resulted seriously damaged the wharf and two of the plaintiff’s ships.
 The question arose as to whether the fire, which was found to be foreseeable
to the reasonable man, was reasonably foreseeable to the extent liability
attaches. It was held that if a reasonable man can foresee and prevent the risk,
then he is liable for the foreseeable damages. The Wagon Mound’s operators
would have foreseen that oil spilling into the harbour had a possibility of
causing a fire, but would have only a very low probability. A fire could only
result under exceptional circumstances. However, because the risk of fire was
foreseeable, the defendants bore a duty to prevent the risk, even if the risk
was a remote possibility. Overruled the wagon mound case number 1.

DAMAGE V DAMAGES

 Damage – loss or injury to a person or property

 Damages – Money provided as compensation to the injured party

RIGHTS OF THE UNBORN

 When a child is in the pre-natal stage such that it could live on its own separated from the
mother, then the baby could be considered a separate entity and could sue on its own for any
injuries to the baby in the womb. Before such a time the baby is part of the mother and thus
cannot raise any claims. If science cannot identify if the baby is born with deformities, then
the law cannot make any statements.
o Mckay v Essex Area Health Authority – A doctor failed to advise an abortion in a
case where if the pregnancy went through, the child would almost certainly be born
with a disability. The unborn child was not allowed to have any claim. Public policy
precludes such a claim as there is no way of balancing the merits of no life against the
benefits or disadvantages of a disabled life.
o Dobson v Dobson - Cynthia Dobson was in the 27th week of her pregnancy. While
she was driving in a snowstorm she lost control of her vehicle and struck an
oncoming vehicle. It is alleged that the accident was caused by her negligent driving.
Her unborn child Ryan Dobson was allegedly injured and was delivered prematurely
by caesarean section later that same day. Ryan suffered from permanent mental and
physical impairment, extending to suffering from cerebral palsy. Ryan’s grandfather
and litigation guardian on behalf of Ryan raised a tort case against Cynthia, claiming
that her negligent actions caused damage to Ryan. The Supreme Court ruled in favour
of Cynthia, using the defence of public policy as reasoning for their judgement.
o Union Carbide Corporation v Union of India - Alongside the other disastrous
devastations that hit the area, it was discovered that multiple children suffered from
congenital heart disease due to the pregnant mothers being exposed to toxic gases,
thus causing the toxicity to affect the children as well. Thus the Supreme Court held
that those who were unborn at the time of the Bhopal gas leak and were thus
adversely affected, provided the defects could be traced back to the exposure to toxic
gases, would be entitled to compensation under their pre-natal rights

DUTY TO THE RESCUER

 When the plaintiff voluntarily takes on a risk to rescue someone from imminent danger, the
defendant cannot take up the defence of volunti non fit injuria, and would thus be held liable
to compensate the rescuer.
 o Haynes v Harwood – Defendant left a horse van in the street unattended. Children
throw stones at a horse, causing it to bolt and thus posed grave danger to people on
the road. A police constable attempted to stop the horses and suffered injury. Since
the case was a ‘rescue case’, the defence of VNFI was not held and the defendants
paid compensation to the constable, considering that the injuries were natural and
probable consequences of the defendant’s negligence.
o Cutler v United Dairies London Limited – Horse belonging to the defendant
escaped into a field. Driver attempted to pacify it and shouted for help. Plaintiff
attempted to help, injured in the process. Defence of VNFI held, plaintiff suit failed
as there was no need to take any risk and thus the plaintiff was liable for the risk he
took.
o Brandon v Osborne Garett – Skylight in a shop collapses. Wife observes glass
falling towards the husband, reasonably believing him to be in danger, instinctively
pulls him away and thus strains her leg. In an action to recover damages, the wife was
held to be entitled to compensation.
o Olga v Tailor – Fireman while rescuing people from a burning building suffers
severe burns and permanent scalding. The defence of volunti non fit injuria not
applicable, fireman entitled to compensation under duty of rescuer principle.

NERVOUS SHOCK AND PSYCHIATRIC INJURY

 Mental suffering following a foreseeable physical injury is routinely compensated while

awarding compensation for physical injury.
 To amount in law to "nervous shock", the psychiatric damage suffered by the claimant must
extend beyond grief or emotional distress to a recognised mental illness.
 A person who intentionally and without good reason inflicts emotional distress on someone
will be liable for any psychiatric and mental injuries that follow.
 The impact theory states that the claimant should be in a foreseeable geographical area of the
injury which resulted in the shock. If the person is not within the near vicinity of the accident,
then there can be no claim. This theory limited to the immediate vicinity.
 The courts identify the area of shock theory as the damages being recoverable as long as the
claimant is within the reasonably foreseeable area of shock.
 Victims of mental suffering come under two types:
o Primary – Participants in the event, in the actual area of danger of receiving
foreseeable personal injury but only suffer a recognisable psychiatric illness and not
any personal injury. These victims are entitled to receive compensation for mental
suffering which amounts to a recognisable psychiatric illness even if the illness was
not foreseeable.
o Secondary – Not participants or in the actual area of danger but still suffer
recognisable psychiatric illness. They are allowed compensation if the conditions of
the ‘control mechanism’ are satisfied: (1) The plaintiff (victim) must have close ties
of love and affection with the main (primary) victim, such close ties extend to spouse,
family but do not extend to employer-employee relationship (2) Plaintiff must be
present at the accident or its immediate aftermath, (3) Psychiatric injury must have
been caused by direct perception of the accident or its immediate aftermath and not
upon hearing about it from someone else. A plaintiff who was a rescuer and suffered
psychiatric injury but was not within the range of foreseeable injury would be treated
like any other secondary victim and thus must prove the three conditions of the
control mechanism to be entitled to compensation.
 o Alcock v Chief Constable of South Yorkshire – Due to negligence of the police,
football pens were overcrowded during a game. A disaster in the football stadium
occurred resulting in the death of 96 people, all of which was broadcasted live.
Plaintiffs raised claims against the constable:
 One plaintiff was elsewhere in the stadium when his two brothers were killed
in the disaster. He failed to satisfy the first condition of the control
mechanism, that condition of ties of love and affection, as the courts refused
to presume that such ties were present on the mere factor of them being
brothers and no evidence proved that there were actually such ties, and thus
received no compensation.
 Two plaintiffs lost their son in the disaster however failed to satisfy the
second clause, that of being at the accident or in the immediate aftermath,
instead viewing it on television and were thus refused compensation.
 One of the plaintiffs identified his brother-in-law at the mortuary at midnight
following the disaster and thus failed to satisfy the third condition as he only
discovered the scene at midnight and thus was not in the immediate aftermath
of the tragedy.
o White v Chief Constable of South Yorkshire – The police officers who were
present in the same disaster rose a claim of post-traumatic stress disorder while
engaging in the rescue work. They were not in the range of foreseeable physical
injury however claimed to be primary victims on the basis of being employees to the
tort-feasor and the nervous shock being in the course of employment. The plaintiffs
were denied compensation as they were not primary victims.
o McLovghlin v O’Brian – Plaintiff’s husband and children were involved in an
accident due to defendant negligence. One child died while the husband and two
children were severely injured and were taken to the hospital. The plaintiff was
informed of the same and arrived at the hospital. The sight of her family injured and
the news of the death of her daughter gave her psychiatric illness and she was allowed
damage for nervous shock as she was a secondary victim as it satisfied the control
mechanism on all three accounts (immediate aftermath being the hospital).
o Bourhill vs Young – The claimant was a fisherman’s wife. As she alighted from the
tramp cart, she saw a motorcyclist go past. After a few minutes, she heard a loud
sound and assumed that the motorcyclist got into an accident. He had in fact died and
his body was taken away. However, when she passed by, she saw the remnants of the
accident in the form of blood and had a nervous shock, and thus delivered a stillborn
child. She then brought a claim against his motorcyclist. The court did not entertain
the claims, stating that she was not in a foreseeable state of nervous shock. The
motorcyclist was negligent, however that does not have the reasonable foresight of
injuring this woman, particularly that of only his blood. Furthermore, she was not in
the area of shock, merely hearing the accident and not seeing it. The court finally
stated that people must have the necessary fortitude to withstand such types of
shocks, and very sensitive plaintiffs will not be compensated.

ECONOMIC LOSS

 Economic loss generally refers to financial loss that can be seen on a balance sheet but not
physically. Economic loss is then divided into consequential economic loss, that which arises
directly from some physical damage or injury, such as loss of earnings from having your arm
cut off and pure economic loss which is everything else.
  Four conditions must be met for a defendant to be liable for economic loss resulting from
negligent advice or information.
o The defendant must be fully aware of the nature of the transaction which the claimant
has in contemplation as a result of receiving information.
o He must either communicate the information to the claimant directly or know that it
will be communicated to him.
o He must specifically anticipate that the claimant will properly and reasonably rely on
the information when deciding whether or not to engage in the transaction.
o The corpus for which the claimant relies on that information must be a purpose
connected with interest that is reasonably required from the defendants to protect.
 Hedley Byrne & Co v Heller – Hedley Byrne was a finance agency who
wanted to know the financial details of one of their clients. Thus they asked
their bank to ask another bank which their clients used of their clients’
details. The second bank replied that the financial status was sound, and thus
Hedley went ahead with the deal. The client however was liquidated and
Hedley lost money. Hedley Byrne sued Heller & Partners for negligence,
claiming that the information was given negligently and was misleading.
Heller & Partners argued there was no duty of care owed regarding the
statements, and, in any case, liability was excluded. The court found that the
relationship between the parties was sufficiently proximate as to create a duty
of care. It was reasonable for them to have known that the information that
they had given would likely have been relied upon for entering into a contract
of some sort. That would give rise, the court said, to a special relationship, in
which the defendant would have to take sufficient care in giving advice to
avoid negligence liability. However, on the facts, the disclaimer was found to
be sufficient enough to discharge any duty created by Heller's actions. There
were no orders for damages.

OCCUPIER’S LIABILITY

 There is an implied warranty by the occupier that the premises are to be as safe as reasonable
care would allow.
 Liability of an occupier varied according to the class of the person entering the premises in
order of: (1) Person entering under a contract, (2) Visitor – customers and guests, friends, (3)
Trespassers.
 Visitors include those with express permission to enter premises as well as an implied
permission, with burden of proof lying on the entrant to prove that he was a visitor. A visitor
ceases to be a visitor when he goes to a place not covered by the permission, where he is not
expected to go, or done something contrary to warning or instruction. The occupier has no
responsibility to ensure the visitor’s safety but only a responsibility of reasonable care,
extending to safety from dangers of the premises due to its condition as well as dangers due to
things done or omitted to be done. The duty of care to children is greater than that to adults.
o Jolley v Suttan London Borough Council – A derelict boat was left in a grassy area
where children played, occupied by the local authority. A child played on the boat
when it fell, causing severe injury. The House of Lords held that the occupier was
liable as a child injuring himself was reasonably foreseeable and thus the occupier
had a duty of care to not allow such reasonable accidents to happen.
 o Wheat v E. Lacon & Co (1922) - A company owned a pub. The manager and his
wife occupied the first floor of the pub, the manager and his wife were allowed to
take residence. The claimant visited the premise through the rear end of the building.
The rear stairs did not have a complete handrail, and thus the claimant fell and had
damage to himself. The court held that there could be two or more occupiers held
liable. If the control is shared then there could be shared occupiers and thus both the
company and the manager were held liable.
 Occupiers Liability Act, 1957:
o Section 1(3) - The Act applies to a person occupying or having control over any fixed
or moveable structure, including any vessel, vehicle or aircraft.
o Section 1(2) - The Act shall regulate conduct with reference to licensees and visitors.
o Section 2(2) - The common duty of care is the duty of care as is reasonable to see that
the visitor will be reasonably safe in using the premises for the purposes for which he
is invited or permitted by the occupier to be there.
o Section 2(3)(a) - An occupier must be prepared for children to be less careful than
adults.
o Section 2(4)(b) – Independent contractors are liable for faulty work.
o Section 5(1) – The occupier owes a common duty of care to persons entering or
using, or bringing or sending goods to the occupier.
 Occupiers are not allowed to inflict damage intentionally or recklessly on a trespasser, such as
placing a spring gun or an electrified wire to prevent trespassers. The Occupiers Liability Act,
1984 laid down a duty to persons other than visitors, such as trespassers: (a) he is aware of
danger or has reasonable grounds to believe they exist, (b) he knows or has reasonable
grounds to believe that the trespasser would come into danger or is in the vicinity of danger,
(c) the risk is one against which he would be expected to provide some sort of other
protection.
o British Railways Board v Herrington – Electrified railway line of the Railway
Board ran between properties in which children played. The fence had gone out
needing repairs and it was possible to cross it, which the Railway staff were aware of,
even noticing children cross through it. A 6 year old boy tried crossing and got severe
burns from the electrified fence suddenly coming to life. The Railway Board was held
liable though the boy was a trespasser.
 Liability is not to ensure visitor’s safety but rather to take reasonable care. This extends to
safety not just from the state of the premises but also known dangers due to things done or
omitted to be done on them.
o Ferguson v Welsh - Sedgefield District Council, in pursuance of a development plan
to build sheltered accommodation, engaged the services of Mr Spence to demolish a
building. It was a term of the contract that the work was not to be sub-contracted out.
In breach of this term, Mr Spence engaged the services of the Welsh brothers to carry
out the demolition who in turn engaged the services of Mr Ferguson to assist. Mr
Ferguson suffered serious injury resulting in permanent paralysis when a wall he was
standing on collapsed due to the unsafe practices operated by the Welsh brothers. He
brought an action against the Council, Mr Spence and the Welsh brothers. The trial
judge held that the Welsh Brothers were liable but that Mr Spence and the Council
were not liable. Mr Ferguson appealed however the appeal was dismissed. Mr
Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr
Spence would have apparent or ostensible authority to invite him on to the land.
However, the danger arose from the unsafe system of work adopted by the Welsh
 Brothers not the state of the premises. As the dangers were not known it was held that
Mr Ferguson would not be compensated.
o Municipal Corporation of Delhi v Subhagwanti
o Caminer v Northern & London Investment Trust Ltd. – Defendants were lessees
of land on which there was an old elm tree. The tree fell on the adjoining highway
and damaged a car and some persons. The roots were badly rotted however there was
no noticeable way to discern the rot. It was held there was no liability as no ordinary
layman could reasonably infer the dangerous condition of the roots.

TRESPASS TO PERSON

 Assault is an attempt to do hurt to another along with the apparent ability and intention to do
so. Actual contact is not necessary.
 Battery is the intentional and direct application of physical force to another person. It is the
actual striking of another person, or touching him in a rude, insolent, angry or revengeful
manner.
 Throwing water at a person could be classified as assault, however if any drops of water touch
the person it could be regarded as battery.
 False imprisonment is a total restraint of the liberty of a person for however short a time
without lawful excuse. To constitute this two things must be established: (1) Total restraint of
liberty of a person – Detention may be either actual (physical) or constructive (show of
authority), (2) Detention must be unlawful – Time period is immaterial but it must be lawful
only. If there is any means of escape that is reasonably intelligible to the person detained then
the restraint cannot be termed as false imprisonment. Lawful detention, such as detaining a
person entering a certain premises with the object of fulfilling certain conditions till said
conditions are completed, is valid.
o Herring v Boyle – Schoolmaster tells mother that school boy would not be allowed
to go till she paid the dues owed to the school. The boy was unaware of such
restrictions and it was thus held that there was no false imprisonment.
o Bhim Singh v State of J&K

 The standard defences to trespass to the person, namely necessity, consent, self-defence, and
defence of others, apply to battery. A physician may touch a person without that person's
consent in order to render medical aid to him or her in an emergency. A person who has,
either expressly or impliedly, consented to participation in a contact sport cannot claim in
battery against other participants for a contact permitted by the rules of that sport, or expected
to occur within the course of play. For example, a basketball player who commits a hard foul
against an opposing player does not thereby commit a battery, because fouls are a regular part
of the course of the game, even though they result in a penalty. However, a player who struck
another player during a time-out would be liable for battery, because there is no game-related
reason for such a contact to occur.
 Defences to assault similarly comprise of self-defence or defence of a third party, or in certain
activities like sport where it is implied.
o Pratap Daji v BB & CI Ry – Plaintiff entered a carriage but did not purchase a
ticket. Made to leave by force. Held that use of force was justified as he did not have
a ticket and was thus a trespasser, giving the defendants the right to use force to evict
him from their premises.
 o Stephens v Myers – Plaintiff was chairman at a meeting, defendant sat at the table at
a distance. Angry discussions occurred and the defendant advanced towards the
plaintiff with a clenched fist and loud words, however he was stopped by the others.
Held liable for assault.

DEFAMATION

 Slander – Publication of defamatory words or statements in transient form that injure the
reputation of the person.
 Libel – Permanent defamation.
o Yousoupoff v MGM Pictures – Rasputin was a movie. In the movie Princess
Natasha was seduced by Rasputin, leading to an illegal relationship between the two.
The Princess Natasha was made to appear like the actual Princess of Russia, Irina and
the Prince of Russia, Felix Yousoupoff was similar to the villain of the movie.
Considering that their likeliness were used, they filed a case against MGM. The court
stated that the case amounted to libel.
o DP Choudhary v Manjulata – Publication in news that plaintiff, Manjulata, a 17
year old, eloped from the house. She was held to ridicule by persons who knew her
and thus sued the Daily. General damages were presumed and she was compensated.
o South Indian Railway Co v Ramakrishna – Ticket collector proclaimed to the
passenger that he was travelling without a ticket. Plaintiff produced the ticket then
filed a suit for defamation. Suit not held as it was bona fide action by collector.
 Essentials of defamation:
o Statement must be defamatory – Injures reputation of the plaintiff in the estimation of
right thinking members of society which might make such members shun or avoid
that person.
o Said statement must refer to the plaintiff.
o Statement must be published – Publishing involves making the defamatory matter
known to some person other than the person defamed. Communication to the plaintiff
alone is not enough, there needs to be an injury to the reputation. Dictating to a typist
however is considered as publication, as is a defamatory letter intended for the
plaintiff which can be easily read by another.
 Those who repeat the matter are as liable as the original defamer, as every repetition is a fresh
publication giving rise to a fresh cause of action. However if the defendant did not know or
could not have known that what they were circulating was defamatory despite reasonable
diligence, then they would not be held liable. Further an editor cannot claim indemnity for
obtaining wrong information and then publishing it, because it is his prerogative to verify the
information before publishing it.
o Emmens v Pottle – Defendants were news-vendors, sold libellous newspapers. Held
not liable for no knowledge.
o Gurbachan Singh v Babu Ram – Editor published wrong information believing it to
be true. Held liable.
 Defences:
o Truth – Truth, regardless of intention behind publication, remains an absolute defence
to defamation. The statement must be substantially true with the correct interpretation
being reasonably foreseeable by right thinking members of society.
o Fair comment – Following conditions are required for a fair comment: (a) Must be a
comment, an expression of opinion and not assertion of fact, (b) Comment must be
fair, (c) Matter commented upon must be in public interest.
 o Privilege – Right of free speech that outweighs the plaintiff’s right to reputation. In
matters of absolute privilege there is no action for defamation even if the statement
made is false or maliciously made. This is recognized in parliamentary proceedings,
judicial proceedings and state communications. In qualified privilege, the statement
must be made with no malice and there must be an occasion which calls for the
statement to be published.
 V Narayana v E Subbanna – Statements made in a complaint to police were
absolutely privileged, thus filing a false complaint cannot be held as liable for
defamation. Courts held not liable.
 In a suit for damages for defamation the plaint ought to allege the publication of defamatory
statement, set out the actual words used and also state that they were published or spoken to
some named individuals and specify time and place they were published. Only the person
who is defamed can raise a suit.

TRESPASS TO LAND

 Trespass to land means interference with possession of land without lawful justification.
Interference with possession is direct and through a tangible object. Non-direct interference is
nuisance. Throwing stones is trespass, allowing them to fall from a ruinous wall is nuisance.
 Going beyond the purpose for which a person has entered certain premises or crossing
boundaries at which the person has authority to go amounts to trespass. A person does not
become a trespasser by merely going beyond the area of invitation, he must go to areas
expressly forbidden.
 Trespass is against possession rather than ownership. The possessor can therefore bring a suit
against the owner for trespass, and can succeed on his own title’s strength rather than the
weakness of the title of the other party.
o Graham v Peat – Plaintiff holding land under lease that expired was entitled to bring
an action for trespass against the defendant who entered that land without legal
justification.
 Trespass extends to above and below the ground as well, up to reasonable limits.
 If a person enters a land under legal justification and then abuses the authority granted to him
to enter the area by committing a wrongful act there, he will be termed a trespasser ab initio
to the property.
o Six Carpenter case – Carpenters entered an inn and ordered wine and bread, refusing
to pay after eating. They did no act of misfeasance however as mere non-payment is
non-feasance and thus they were not held as trespassers.
o Elias v Pasmore – Police officers entered plaintiff’s premises to make a lawful
arrest, however they also removed documents without any legal authority, an act of
misfeasance. Their presence was not wholly unjustified because the arrest, the lawful
venture, had yet to be accomplished. Thus they were held as trespassers with regards
to the documents but not ab initio.
 If trespass occurs then the possessor has right to use reasonable force to get the trespasser
vacated, however they cannot sue for trespass. Any loss or damages suffered during the
trespass would be compensated however.
 Defences:
o Right of way obstructed by plaintiff and trespass was necessary to avoid it
 o License to enter, such as entry to a shop or a public house, however the defendant
must prove that express or reasonably implied permission was granted for such
entrance to premises.
o Authority of law, such as that of police officers.
h

NUISANCE

 Unlawful interference with a person’s use or enjoyment of the land or some right over or in
connection with it. Nuisance is consequential interference with land.
 There are two kinds of nuisance; public and private.
 Public or common nuisance – Crime. Public nuisance comprises of acts that either affect the
public at large or some considerable portion of it, thus interfering with the rights which
members of the community might otherwise enjoy. Obstructing a public road by digging a
trench is public nuisance. For a private right of action a person must: (a) Show a particular
injury to himself greater than that which is suffered by the rest of the public, (b) Such injury
must be direct and not a mere consequential injury, (c) The injury must be of a substantial
nature.
o Dr Ram Raj Singh v Babulal – Brick grinding machine built adjoining the premises
of the plaintiff, a medical practitioner. Brick machine generated dust which entered
the consulting chamber of the plaintiff, causing inconvenience to his patients and
himself. It further coated the clothes red with dust. It was held that special damages
were to be provided to the doctor and a permanent injunction was issued against the
defendant for his brick grinding.
o Campbell v Paddington Corporation – Funeral procession of Edward VII was to
pass by plaintiff’s house. Plaintiff accepted payments from people to view the
procession from his house. Defendant Corporation created a stand on the highway to
provide the corporation and its guests a view, thus covering the view of the plaintiff,
causing monetary harm to the plaintiff. The plaintiff was held entitled to receive
compensation, stating that it was public harm and special harm to her.
 Private nuisance – Conditions: (a) Unreasonable interference, (b) Interference with use of
enjoyment of land, (c) Damage. Unreasonable interference is determined by the society and
locality. Sensitiveness of the plaintiff is not taken into account.
o Bradford Corporation v Pickles – Defendant derived water from his own land,
discolouring and diminishing the entire pool thus causing damage to the plaintiff but
not directly violating any legal rights of the plaintiff. If an act is lawful, it does not
become unlawful merely because the act was done with evil intent.
o Miller v Jackson – Cricket was played in a small ground. Houses were built next to
it, including the Millers’ house. Several cricket balls were hit onto their property over
the following years, causing minor damage to their house and risking personal injury
to the Millers. The Millers were awarded damages, but the cricket grounds were
allowed to remain as they were in full function.
 Defences:
o Right to commit nuisance – If a person practices an activity for 20 or more years, he
acquires a legal right to carry on said act in the future too.
o Statutory Authority – An act done under the authority of a statute is a complete
defence. If nuisance occurs due to such acts, then there exists no liability.
 Ineffectual defences:
 o Nuisance due to acts of others – Act of two or more people acting individually may
cause nuisance although the act by either alone would not do so. It is not a valid
defence however, and instead all parties would be held liable.
o Public good – It is held that the private rights of individuals are of more importance
than that of public utility undertakings, and thus public good is not a valid defence.
o Reasonable care – Merely providing reasonable care to ensure that nuisance does not
occur is not enough to escape liability.
o Plaintiff coming to area of nuisance – Just because the plaintiff came after the
nuisance existed does not mean that the plaintiff cannot recover for nuisance.
 Remedies:
o Abatement – Removal of nuisance. Must be (a) peaceable, (b) without danger to life
or limb, (c) removed after providing notice if in the premises of another.
o Damages – Measure of damages is valued as the diminution in the value of the
property due to the negligence. The plaintiff must prove special damage.
o Injunction – The injury present or impending must be so grave as to warrant an
injunction and cannot be adequately compensated in damages alone.
STRICT LIABILITY

 Activities so hazardous that they constitute constant danger to person and property of others,
however may be tolerated on the condition that they pay their way regardless of any fault.
o Rylands v Fletcher – Defendants had a mill, constructed a reservoir by employing
engineers to do it. When the reservoir was filled the water would flow down the
plaintiff’s mine, causing damage. Engineers were independent contractors and they
were negligent for not properly sealing disused mine shafts that allowed the water to
flow out. The defendants were held liable under the principle of strict liability. Thus
the Rule of Rylands v Fletcher was created with its two elements: (a) non-natural use
of land, (b) escape from his land something which causes damage.
o Cambridge Water Co. Ltd. v Eastern Counties Leather Plc – Plaintiff was a
company licensed to supply water in the Cambridge area. Water was taken by
borehole extraction. Defendant was another company engaged in manufacture of fine
leather, near to the plaintiff. Defendant used chemicals which seeped into the ground
beneath the defendant’s works and contaminated the water. The defendant was not
held liable as the consequences of his actions were not reasonably foreseeable.
Knowledge of mischief is a prerequisite of liability.
 Defences
o Act of third party/stranger – If the act was caused by a third party over which the
defendant had no control over, then the defendant would not be held liable.
 Perry v Kendricks Transport – The defendant kept an old coach in need of
repairs on his land adjoining a wasteland. Some boys saw it and threw lit
matchsticks into the petrol tank, causing an explosion from which the
claimant was badly injured. The courts held that this was the deliberate act of
a third party and thus the defendant would not be liable.
 Ribee v Norrie - Miss Ribee, the claimant, a 70 year old woman lived in a
terraced house. The neighbouring property was owned by the defendant and
had been converted into a hostel. One night a fire broke out in the hostel
which spread to Miss Ribee’s home. Miss Ribee was awoken by her dog and
managed to escape but suffered personal injury in the form of smoke
inhalation and panic attacks. She also incurred damage to her property. The
fire was started by a negligently discarded cigarette by one of the occupants
 of the hostel. The defendant was held liable as the person who started the fire
was not a complete stranger and thus the defendant had the power to prevent
such actions, such as smoking, from occurring.
o Plaintiff’s own fault – If the plaintiff suffers damages for his own intrusion into the
defendant’s property then he has no right to complain for the damage caused.
o Act of God – If the escape was caused by unforeseen and supernatural forces without
any human intervention then the defence of act of God can be pleaded.
 Nichols v Marsland – The defendant created artificial lakes on his land by
damming up a natural stream. That year there was extraordinary rainfall and
thus the embankments constructed for the artificial lakes gave way and the
water rushed out. It was held that the defendants were not liable as it was an
act of God.
o Consent of the plaintiff – VNFI
 Carstair v Taylor – Plaintiff hired ground floor of a building from the
defendant. Upper floor was occupied by the defendant himself. Water stored
on the upper floor leaked without any negligence on the part of the defendant
and injured the plaintiff’s goods on the ground floor. As the water was stored
for the use of both the plaintiff and defendant it was held that the defendant
was not to be held liable.
o Statutory Authority – Act done under the authority of a statute is a defence. Statutory
authority however cannot be used as a defence to negligence.
 Green v Chelsea Waterworks Co – Defendant company had a statutory
duty to maintain continuous supply of water. A main burst without any
negligence on the company’s part and as a consequence the plaintiff’s
premises was flooded. It was held that the company was not liable as it was
performing a statutory duty.

ABSOLUTE LIABILITY

 When an enterprise is engaged in a hazardous or inherently dangerous activity for its profit
and harm results to anyone on account of an accident in the operation of such activities, then
such enterprise will be held absolutely liable to compensate all those who were affected by
the accident and such liability is not subject to any exemptions or defences. The enterprise
alone must have the resources to discover and guard against hazards or dangers and to provide
warning against potential hazards.
o MC Mehta v Union of India – Claims arose from the leakage of oleum gas from one
of the units of a company. As a consequence of this leakage, it was alleged that
people were affected, leading to death. This occurred in the wake of the Bhopal
tragedy. The SC evolved the rule of absolute liability and thus held the company
completely liable.
o Klaus Mittelbachert v East India Hotels Ltd. – A German pilot when staying at the
Oberoi in Delhi was badly injured when he dived into a hotel swimming pool due to
defective design and insufficient water. It was held that a five-star hotel owes a high
duty of care to its guests and thus was held to pay exemplary damages.

MASS TORTS

 Bhopal gas leak – Deaths of over 3000 people and complications and injuries in a large
number of others due to the leakage of MIC and other toxic gases from the plant set up by
 Union Carbide Corporation. Due to the vast number of people wishing to raise cases against
UCC, the Government of India filed a suit on behalf of all the claimants. The UCC was held
under the principle of absolute liability and was made to pay exemplary compensations.

VICARIOUS LIABILITY

 Liability of one person for acts done by another person may arise when there is a special kind
of relationship between the people.
 Salmond’s test for vicarious liability:
o a wrongful act authorised by the master, or
o a wrongful and unauthorised mode of doing some act authorised by the master.
o It is clear that the master is responsible for acts actually authorised by him: for
liability would exist in this case, even if the relation between the parties was merely
one of agency, and not one of service at all. But a master, as opposed to the employer
of an independent contractor, is liable even for acts which he has not authorised,
provided they are so connected with acts which he has authorised that they may
rightly be regarded as modes-although improper modes-of doing them.
 Master and Servant – Qui facit per alium facit per se & Respondeat superior hold that the
master is liable as well as the servant, putting the master in the same position as if he did it.
Their liability is joint and several as they are considered to be joint tort-feasors. This further
arises from the deep pocket theory, which states that masters are more likely to be able to
meet the claims against them. For vicarious liability to hold it must first be established that
the employee was a servant and not an independent contractor, determined through the test of
control. The four conditions in the test of determining servanthood are: (a) Master’s power of
selection of servant, (b) payment of wages, (c) Master’s right to control the method of doing
work, (d) Master’s right to suspend or dismiss. Further personal investment of the other
parties into the servant and the intention to form a master-servant relationship all allow
vicarious liability to fall upon the masters. A borrowed servant will make the original (real)
master liable unless it can be proved that complete and absolute authority lies with the new
master, not just in terms of defining the work to be done but also the method in which it is
done.
o Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd. –
Appellants lent crane and driver to respondent under a contract stating that the driver
would be the servant of the respondent. The crane driver injured someone in his
negligence however the original owners, the appellants, were held liable as the
transfer to servant was incomplete and therefore invalid. It was held that for certain
tasks, such as a man driving a mechanical device, the general employer still holds the
mothed of performance and thus remains the master who will be held vicariously
liable.
o Rajasthan State Road Transport Corporation v Kailash Nath Kothari – Bus was
hired along with the driver by the corporation from a private owner, met with an
accident. The driver was under the pay roll of the private owner, however the services
along with complete control of the method of employment was transferred to the
corporation. Thus the corporation was held liable and not the private owner.
 Principal and agent – Qui facit per alium facit per se or “the act of an agent is the act of the
principal”, and thus for any act authorized by the principal and done by the agent, both may
be held liable. The authority to do the act may be express or implicit, if the agent acts in the
general course of performance of duties as an agent, the principal becomes liable for the
same.
 o Lloyd v Grace, Smith & Co. – Lloyd owned two cottages but was not satisfied with
the income and thus approached the office of Grace, Smith & Co. The managing
clerk attended her and advised her to sell to invest the money in a better way. She was
asked to sign two documents thinking they were sale deeds but were in fact gift
documents made to the managing clerk, which he sold and misappropriated the
proceeds of. Since he acted in the course of employment both he and the principal
were made liable, though the principal had no knowledge of the occurrences.
o State Bank of India v Shyama Devi – Plaintiff’s husband gave some amount as
cheques to his friend to deposit in the plaintiff’s account in the bank in which the
friend worked in. No receipts were received. It was held that the defendant was acting
outside the course of employment and instead in his private capacity and thus the
bank could not be held vicariously liable.
 Partners – Similar to principal and agent. All partners of a business are liable to the same
extent for the actions done by one partner in the ordinary course of business.
 Course of employment – A broad view is taken when determining what falls under the scope
of employment. The general method is to see whether the wrongful act committed by the
servant has deviated so much so from the normal method of doing the authorised act that the
wrongful act cannot be described as merely a wrongful or unauthorised method of doing the
authorised act. Under the close connection test however, as shown in Mattis v Pollock, the
employer would be held liable due to the close connection of the wrongful act of the
employee to his employment and duties.
o Lister v Hesley Hall Ltd. - A boarding house was opened in 1979 with the principal
students to live there having behavioral and emotional difficulties. They lived under
the care of a warden, who was in charge of maintaining discipline and the running of
the house. The warden lived at the house also, with his disabled wife. His duties were
ensuring order, in making sure the children went to bed, went to school, engaged in
evening activities, and supervising other staff. It had been alleged by some of the
boys that the warden had sexually abused them, including gifting them unwarranted
surprises, and taking trips alone with them. A criminal investigation took place some
ten years later, resulting in the warden being sentenced to seven years imprisonment.
Following this, the victims brought an action for personal injury against the
employers, alleging they were vicariously liable. The suit held and the defendants
were found vicariously liable. A new test of vicarious liability came about; (a) in
considering the scope of the employment, a broad approach should be adopted, (b)
while consideration of the time and place at which the acts occurred will always be
relevant, they may not be conclusive, (c) while the employment enables the employee
to be present at a particular time and place, the opportunity of being present at
particular premises whereby the employee has been able to perform the act in
question does not mean that the act is necessarily within the scope of the
employment.
 There are prohibitions that limit the sphere of employment and prohibitions that only deal
with the conduct within the sphere of employment. A transgression of a prohibition of the
latter class leaves the sphere of employment where it was and consequently will not prevent
recovery of compensation. A transgression of the former class carries with it the result that
the man has gone outside the sphere.
 If the independent contractor has breached a non-delegable duty the employer will be held
vicariously liable. If it is a breach of delegable duty, the employer will not be liable.
Dangerous and hazardous natured jobs will make the employer be held liable.
 This means that when one owes a non-delegable duty towards another, he has a duty not only
to take reasonable care himself, but ensure that others take reasonable care. Thus a defendant
 who owes a non-delegable duty will be liable for the wrongdoing of others even if they are
independent contractors. The following requirements must be settled for non-delegable duties:
o Control/responsibility - the defendant must have had some control over the plaintiff
or the plaintiff's property.
o Vulnerability - the plaintiff must have been unable to protect himself and was forced
to rely on the defendant to ensure that care had been taken.
o Criminal conduct is exempted - the defendant will not be liable for harm caused by
someone else's criminal conduct.
 Examples of non-delegable duties include school/pupil, hospital/patient and
employer/employee.

STATE LIABILITY

 In England the crown is liable for torts committed by its servants, just like a private
individual. Thus it would be subject to: (a) torts committed by its servants or agents, (b)
breach of duty which a person owes his servants or agents, (c) respect to any breach of duties
attaching at Common Law to the ownership, occupation, possession or control of property.
 Peacock CJ – There is a clear distinction between acts done in exercise of what are termed as
sovereign powers and acts done in the conduct of undertakings which might be carried on by
private individuals without having such powers delegated to them.
 Sovereign powers are those powers which cannot be lawfully exercised except by a sovereign
or private individual delegated by a sovereign to exercise them. Upon such powers no action
will lie. Ex: - Police power in keeping property or detaining individuals, maintenance of
military road, transportation of military food, military drivers and conveyance for sovereign
purposes.
 State is exempted from liability to pay damages for tortious acts of the servant, where the
government servant is carrying out or purporting to carry out duties imposed by law.
 Sovereign immunity is subject to fundamental rights.
o Peninsular and Oriental Steam Navigation Company v Secretary of State for
India – Plaintiff’s servant was travelling in a horse carriage and was passing by
government property. Due to negligence of the defendant’s servants, a heavy piece of
iron fell and frightened the horse, causing it to injure itself. Plaintiff filed a suit
against the Secretary of State for India, and the courts held that the Government of
India would be held liable as the job undertaken was a non-sovereign work.
o Nobin Chander Dey v Secretary of State for India – Plaintiff filed a suit
contending that the Government had made a contract with him for the issue of license
for the sale of ganja. Government was exempted from liability as the function was a
sovereign one.
o Secretary of State for India in Council v Hari Bhanji – Respondents bought salt
with a certain amount paid as tax. While the salt was in transit, a new Act came into
being increasing the excise costs. The collector attempted to charge the extra to the
recipients of the goods. The collector was held liable to provide compensation and it
was held that “Where an act complained of is professedly done under the sanction of
municipal law, and in the exercise of power conferred by that law, the fact that it is
done by the sovereign powers is not an act which could possibly be done by a private
individual, does not oust the jurisdiction of the civil court”.
o Kasturi Lal v State of UP. – Ralia Ram, one of the partners in a jewellery firm went
to Meerut to sell gold and silver. He was arrested on suspicion of possessing stolen
property and his goods were kept in police custody. The Head Constable
misappropriated the gold and fled. The plaintiff held the state of UP liable, however it
 was held they were not liable as (a) the police officials were acting in discharge of
their statutory powers and (b) the power of the police official in keeping the property
was a sovereign power, contradicting the Vidyawati case.
o State of Rajasthan v Vidyawati – Plaintiff’s husband died after being knocked
down by a Government jeep car which was driven rashly and negligently by a
Government servant. State was held liable, and the High Court felt no reason to treat
the state any differently from an ordinary employer. The Supreme Court in the appeal
held the decision, stating that the State cannot be immune from tortious acts of its
employees.
o N Nagendra Rao & Co v State of AP – Appellant carried a business in fertilisers
and foodgrains. Huge stocks were seized from the appellant’s premises. Only nominal
amounts of the stock was released after, and furthermore was spoilt in quality and
quantity. The appellant therefore sued the State. The SC held that the State was liable
and further held that the doctrine of sovereign immunity was no longer relevant in the
current context of society.

CONSTITUTIONAL TORTS

 Constitutional torts are legal actions to pursue damages for violations of constitutional rights.
Examples include suing a police officer for use of excessive force, suing a school
administrator for wrongfully expelling a student, or suing a prison warden for unconstitutional
conditions of confinement. Awarding damages to individuals who are harmed by a federal or
state official’s violation of the Constitution compensates for some of the individual’s past
injury and deters future rights deprivations.
 Claim in public law for compensation for unconstitutional deprivation of fundamental rights
is a claim based on strict liability.
o Ramjan v State of Rajasthan – Four women were injured by someone throwing
acid on them. Held to be deprivation of right to live with dignity, as the acid caused
permanent scars and continuous mental torture.
o Peninsular and Oriental Steam Navigation Company v Secretary of State for
India
o Bhim Singh v State of J&K
o Kasturi Lal v State of UP.

DEFENCES

 Statutory Authority – When an act is done under the authority of an act, it is a complete
defence and the injured party has no remedy except for claiming such compensation as may
have been provided by the statute. Immunity is provided not just for the immediate, obvious
harm but also for any incidental injuries. Authority of the state may be absolute or
conditional. Absolute includes creating a railway line and thus being exempt from any claims
of nuisance or incidental harms due to excess sounds. When the authority is conditional, it is
permitted only if no harm is caused thereby. Creation of a smallpox hospital is one such
example of conditional authority.
o Metropolitan Asylum District v Hill - There was an allegation that managers of a
hospital had been negligent in and about the construction and maintenance of a
hospital for small-pox patients in Hampstead. The plaintiffs offered this evidence to
show that in two recent small-pox epidemics there was more disease in the
neighbourhood of those hospitals than in other similar localities which had no small-
pox hospital. The hospital managers were held liable, with the court holding that the
 test should be that the evidence was capable of establishing a reasonable presumption
or inference as to the matter in dispute and that it was reasonably conclusive.
 Inevitable Accident – Unexpected injury which could not have been avoided despite of
reasonable care on the part of the defendant.
o Stanley v Powell – Defendant fired at a bird, missed and hit a tree, bullet rebounded
and hit plaintiff. Defendant held not liable under inevitable accident defence.
 Act of God – Kind of inevitable accident, done by supernatural events.
o Nichols v Marsland
 Necessity – Act causing damage if done under necessity to prevent an even greater evil is not
actionable though harm might be caused intentionally.
o Olga Tellis v Bombay Municipal Corporation - This case came before the Supreme
Court as a writ petition by persons who live on pavements and in slums in the city of
Bombay. It was prayed by the petitioners to allow them to stay on the pavements
against their order of eviction. It was held that as a matter of necessity they were
allowed to stay, concurring with Right to Livelihood as provided by article 21.
 Mistake – Generally no defence, whether in fact or law, however in certain situations if the
defendant acts under an honest and mistaken belief then he may not be held liable.
o Consolidated Co. v Curtis – A gave goods to auctioneer who honestly believed that
the A was the owner of the goods when in fact A stole them from B. Auctioneer was
sued for conversion however was not held liable for acting in good faith with no evil
intent.
 Private defence – Use of reasonable force to protect person and property. Force must be used
to repel imminent invasion and should only be as much as is absolutely necessary. Excess
defence cannot be justified.
 Plaintiff the wrongdoer – Mere fact that plaintiff is a wrongdoer does not disentitle him from
recovering loss.
o Bird v Holbrook – Trespasser is entitled to claim compensation for injury caused by
spring guns set by the defendant in the garden without notice.
 Volenti non fit injuria – If plaintiff suffers harm with his own consent then the defendant will
not be liable. Mere knowledge of the risk is not enough (scienti non fit injuria), there must be
consent to such risks to act as a defence.
o Dann v Hamilton – A lady, knowing that the driver of a car was drunk chose to
travel in it instead of by bus. Shew as injured by an accident caused by the drunken
driving. There was held to be no consent on her part to suffer harm and thus she was
entitled compensation.
 Rescue – Does not apply, cannot take the defence of volenti non fit injuria.
o Haynes v Haywood
 Contributory negligence – Both plaintiff and defendant are negligent. Damages will be
reduced however the defendant will not be freed from liability.
o Jones v Boyce – Passenger in a horse driven carriage apprehended that the carriage
might overturn and in order to protect himself jumped out of the carriage. The court
held that the claimant acted in the manner due to the actions of the horse driver and
thus the driver was held liable, no contributory negligence.

DAMAGES

 Types:
o Nominal – infringement of legal rights but no harm, nominal damages awarded in
recognition of his right.
 o Contemptuous – Amount is trifling because the court forms a low opinion of the
plaintiff’s claim and feels that the plaintiff does not deserve a large compensation
though he may have suffered a great loss. For example, the reason for the defendant’s
battery was hurtful remarks by the plaintiff.
o Compensatory, aggravated and exemplary – Compensatory is equivalent to the loss
suffered. Aggravated is when there is harmful motive and insult caused to the feelings
of the plaintiff, causing greater damages. Exemplary is when excess compensation is
given for deterrent purposes.
o Prospective – Compensation for damage that as likely the result of the defendant’s
harmful act but has not resulted at the time of the decision of the case. For example, a
crippled person would get compensation not just for the loss suffered till the case but
also for future likely damages.
 Measure of damages – compensation may be given under the following:
o Personal pain and suffering and loss of enjoyment of life, including mental agony
o Actual pecuniary loss resulting in any expenses reasonably incurred by the plaintiff
o Probable future loss of income by reason of incapacity or diminished capacity for
work.
 Injunctions – order by the court directing the doing of some act or restraining the commission
or continuance of some act.
o Temporary and perpetual injunctions – Temporary is provisional and thus once the
conditions are satisfied will be removed. Perpetual is a final order issued after full
consideration of the case.
o Prohibitory and mandatory – prohibitory (negative) prevents an action, mandatory
(positive) requires an action to be done.
 Self-help - Individuals' implementation of their rights without resorting to legal writ or
consultation of higher authority, as where a financial institution repossesses a car on which
they hold both the title and a defaulted note. Individuals resort to self-help when they retrieve
property found under the unauthorized control of another person, or simply abate nuisances,
as by using sandbags and ditches to protect land from being flooded. Self-help will be
allowed as long as no law is broken, and no breach of the peace occurs.