Mid Semester Prep

Theoretical perspectives on Law of Torts

Tort Law is applied as principles of justice, equity and good conscience under section 9 of
the civil procedure code which enables civil courts to try all cases of a civil nature.
Lord Scarman- The common law covers everything not covered by statute, which means
that there is no chance of casus omissus. Tort law starts with a base principle and the
reasoning for a judgement can be created by different applications of the current
principle which are consistent with the original’s purpose. The only issue is that
judges could be stagnant and not evolve new principles but this has not happened yet.
Justice Bhagwati- The Law of torts should continually develop and evolve new principles
in order to keep up with the new problems that arise consistently in a highly
industrialised state. The Law should not depend on the standard followed by England
or any foreign court.
Justice Sahai- The Entire Law of torts is based upon the primary morality that one must
not harm others, even unintentionally. Thus it would be impossible to restrict the law
of torts to a closed group.
Tort can be defined as a breach of duty independent to a contract which gives rise to civil
cause of action and where compensation is recoverable.
General Principles of Torts
A right is a faculty that resides in a party and avails against all other parties except the
one in which it resides. To every right there corresponds a duty or obligation.
Wrongful Act- It is an act that prejudicially affects the legal right of another person.
Damage- It is harm that is suffered by a person as a result of wrongful act by another.
Remedy- This works on the principle of ubi jus ibi remedium where if a man has a right,
he must necessarily have a means to maintain it, vindicate it and if he is injured in his
enjoyment of that right then he would have a remedy against it.
Law of tort vs Law of torts-
Law of tort was supported by Winfield who claimed that the wider principle that all
unjustifiable harm is tortuous in itself and the court can create new torts as and how
time passes.
Law of torts was supported by Salmond who said that liability was only possible when
the action came under the head of a particular tort. There are multiple pigeon holes
 and unless the case can be placed within one of the holes, the person has committed
no tort.
Glanville Williams said that to assume that torts are classified as pigeon holes does not
mean that they are not capacious or that they cannot be added to.
Tort and other branches of common law
Juridical divisions between the different kinds of common law are so blurred that they are
viewed as general law of obligation rather than three separate branches. Contracts deal
swith obligations that have been voluntarily undertaken. Tort law deals with the
obligation not to violate another person’s legal rights and interests. Law of unjust
enrichments deals with the obligation to reverse unjust and unjustifiable gains. While
it is agreed that it is indeed possible to classify the cases under the three broad heads,
they still remain imperfect as there are many instances where they overlap. The law
regarding ‘assumption of responsibility’ stemming from Hedley Byrne & Co v Heller
&Partners Ltd undermines the fundamental principle that liability in a tort is enforced
by a law and not by contract.
Contract vs Tort-
1) Tort is a right in rem, Contract is a right in personam.
2) Contract is founded upon consent; tort is inflicted with or without consent.
3) Contract has privity among the parties, torts have no privity.
4) Duty in tort is imposed by law and available against the community at large, in
contract it is enforced with consent and will of the parties and is available against
specific individual(s).
5) In contract, motive is immaterial, in torts it is often considered. Damages in contract
are solely for compensation, in torts of malice, cruelty and violence the damages
could be aggravated.
6) Law of torts is aimed at allocation or prevention of loss; law of contracts is aimed to
see that a duty is performed as agreed upon.
In Donoghue vs Stevenson, manufacturer had a contract liability to the retailer but was liable
under torts for the friend of the customer who drank it and fell sick. In Ashdown vs
Samuel Williams and Sons Ltd, it was held that the occupier could be waived of liability
by framing conditions and making them known to the licensee. Although initially the duty
in tort is owed to the world at large, after the breach, the person is liable to a specific
party. In Caparo vs Dickman it was held that a person who is of a particular profession
would be held liable under contract and tort for failing to exercise the skill expected of a
person of that profession. There is a recent advance towards the principle that any
avoidable breach of contract is also a tort. However, this was given a huge setback when
the lordships decided that there was no enrichment to the law by searching for a breach in
tort when the parties were in a commercial contractual relationship. This was held in the
Tai Hing Cotton Mill vs Liu Chang Hing Bank Ltd.
Tort vs Quasi Contract- Quasi Contract works on the principle that no one should be
unjustly enriched. In Quasi contracts the repayment of the benefits owed is to a
specific party, while in torts it is in general. The damages are liquidated in QC but
unliquidated in torts. Similarity between QC and tort is that the liability is placed by
law and not by agreement. There is no primary duty in QC, but only a secondary duty
to repay; whereas in torts there is a primary duty not to breach the duty.
Tort vs Crime-Tort is the breach of private rights of an individual whereas crime is a
public offence against the whole community. In torts the wrongdoer compensates the
injured party but in crime the state punishes the offender. In torts the injured party
brings about the action, in crimes the state lays the charges. Compensation is ancillary
to the punishment in crimes but is primary in torts. Bombay High Court laid down
that the constitution of a crime is down to statute law. The distinction between the
crime and a tort or civil injury is in the sanction imposed. In crime the sanction is
punishment, in torts it is compensation. The objectives are deterrence and recompense
respectively. Torts and crimes are similar at a primary level of not causing harm to
others. If assault under tort is also seen as a danger to society it could be considered as
a crime.
Omission and Commission
Omission is the failure to do something which a reasonable or prudent man would have
done. Commission is to do something which a reasonable or prudent man would have
not done. The law does not impose a liability simply for not doing an act. An
omission is a liability only in cases where there is a duty to act.
Damnum sine injuria is when there is an economic loss with no violation of any legal
right. In Gloucester Grammar School and Acton v Blundell there was held to be no
right as there was no damage to a legal right for setting up a rival school and for
intercepting subterranean water.
Injuria sine Damnum is a case where there is a violation of legal right but no monetary or
material loss. In Ashby v White and Marzetti v Williams it was held that refusal to
register a vote or refusal of customer’s cheque is a violation of legal right.
Breach of Duty
Duty of care is concerned with whether or there exists a legal obligation to take care
between the parties. Breach of duty is concerned with what the law requires of the
defendant in order to take care and avoid potential liability in negligence. The
components of this exercise are-
1) Whether harm to the defendant was reasonably foreseeable by the hypothetical person
in the place of the defendant.
2) Once the threshold is met, the court decides the appropriate standard of care that is to
be taken in the relation between the plaintiff and defendant.
3) Finally, the court needs to decide whether the defendant fell below the standard of
conduct that was expected by law.
External factors affecting the Defendant and the standard of care.
1) Likelihood of harm- The more likely the harm, the greater need for the precaution to
be taken. In the case of Bolton v Stone, it was held that there was no liability since
there was remote chance of the ball escaping the stadium and even more remote
chance of it actually hitting a passer-by. In the case of Northwestern Utilities v
London Guarantee and Accident Co. Ltd. It was held that even though the escape of
gas was caused by the work of sewage workers employed by the city, the liability on
the Company was to conduct a large number of checks which were not done and they
were held liable as the escape of gas was likely and they were held to a higher
standard of care.
2) Seriousness of the harm- It was held that just like the likelihood of harm affected the
standard of care, so too did the seriousness of harm. In the case of Paris v Stepney
Borough Council it was held that since the employee was blind in one eye, the
employers owed him a greater duty due to the seriousness and consequences of an
injury to his eyes.
3) Social utility of the defendant’s action- In the case of Daborn vs Bath Tramways
Motorways Co. Ltd, since the driver was an ambulance driver it was held that he was
not liable for the not giving a signal at the turning. Considering the social utility of the
defendant’s action it was held that it was essential that the ambulance service be
maintained and for that reason the driver of the ambulance was not liable. It was held
that it steps towards achieving the necessary standard of care should be checked in
their requirement in order to see if it prevents a desirable activity from being
 performed or discourages people from undertaking activities in connection with
desirable activities.
4) Emergencies- In case of Watt vs Hertfordshire County Council, the fire service was
called to save a woman and in going to rescue her, the jack was transported through a
different vehicle. It jolted forward and injured a fireman at a signal. It was held that
the defendant was not liable since he was trying to save a woman trapped under a
lorry. The emergency did not exonerate the defendant from displaying any standard of
care but rather reduced the standard demanded.
5) Relative cost of avoiding harm- In the case of Latimer vs AEC Ltd. A storm caused a
factory to be flooded. The floor was slippery with a mix of water and oil and a
workman slipped and fell. It was called into question whether the floor was so
slippery that the reasonable and prudent man would have shut down the factory rather
than allow the employees to work in such conditions.
6) The ‘Hurly Burly’ of life- The tort of negligence does not demand perfection and the
ability of the person to guard against every possible risk. A good application of this is
in the case of parental and quasi parental duties. In Carmarthenshire City Council v
Lewis, it was held that the teacher was not liable for the young boy wandering out on
the road and causing an accident where the claimant’s husband died. It was held that
the teacher was not liable for the reason that she did not notice the boy leave the class
because she was attending to another boy with a cut knee. In Surtees vs Kingston-
Upon-Thames Council, it was held that the mother was not liable for leaving her child
near a wash basin where he scalded himself. It was also held that they should be slow
to categorise the incidents as negligence given the rough and tumble of home life.
7) General practice of the community- A specialist who failed to diagnose the complaint
of the claimant was held not to be negligent when he uses the instruments in the
British community when the American ones would have led to a better diagnosis. In
Cavanagh v Ulster Weaving CO. Ltd. The defendants were liable for the claimant
slipping from the rope ladder. There is a code of industry practice which embodies the
results of the scientific evidence and collectively responds to the risk.

Factors pertaining to the defendant

Lord Macmillan said that by setting the standard of care in the eyes of a hypothetical
prudent man we are removing the personal equation and is independent of the
 idiosyncrasies of the particular person whose behaviour is in question. The relevant
factors are given below
1) Child Defendants- In Mullin v Richards the defendants were held to not be liable for
the splinter that hit a third party during a scale fight and in the case of McHale v
Watson it was held that the 12 year old was not liable for throwing a dart. The burning
question is whether the child is personally taken into account or it is an objective test.
2) Intelligence and Knowledge- This deals with the issue that a defendant is expected to
be of average intelligence and it is no excuse for the best judgement of a person to be
below that of a reasonable person. This has two parts, the first being of the
Knowledge and experience that the person has regarding the subject. In Wagon
Mound 2 it was expected of the ship captain to know that there was a risk of fire due
to the discharge from the ship. The second part is what knowledge of the facts and
circumstances the defendant is expected to have. He will not be excused for failing to
know what a reasonable man would ought to know in the situation. A landlord would
be obligated in the absence of personal knowledge, to consult an expert about whether
the lift he is installing is up to a certain standard or not.
3) Skill- When a person performs a certain task he is expected to possess the intelligence
which conforms to the ordinary level expected of a person engaged in that task. It is
not sufficient for a medical practitioner to say that he acted to the best of his ability if
a reasonable doctor could have diagnosed it. In the case of Wells v Cooper when the
houseowner fitted the doorhandle badly, he was expected to only have the skill of a
DIY enthusiast and not that of a professional carpenter.
4) Disability and infirmity- It is generally expected to treat the individual with the
consideration of their disability or infirmity and not treat the individual as a
hypothetical person but rather considering all the individual traits of the person. In
Roberts v Ramsbottom the defendant was liable even after suffering a stroke for
getting into the car and driving. There were two grounds for negligence in this case,
he said that he was liable for continuing to drive and the second was that his disability
could only place him above the normal standard of care.
5) Special Knowledge concerning the defendant- In the case of Haley v London
Electricity Board the House of Lords held that when operations were conducted on
the highway they should foresee that blind persons would walk on the pavement and
should take the necessary precautions. In Johnstone v Bloomsbury Health Authority it
was held that the hospital was liable for the junior doctors who were being made to
 work overtime and that the hospital should have been considerate about their
condition. In Pape v Cumbria County Council it was held that it was insufficient to
provide the workers with rubber gloves to prevent dermatitis, but the management
also had to inform them about the risk of dermatitis.
6) Ability to predict acts of third parties- In Manchester Corp v Markland it was held
that the bursting of pipes that caused an accident was the liability of the statutory
body for the supply of water and that there was no excuse of saying that they were
unaware of the bursts which resulted in the skidding of a car. In London Passenger
Transport Board the driver is not expected to foresee all the possibilities buy he is not
entitled to put out of consideration the teaching of experience as to the forms of these
follies.

Res Ipsa Loquitor- In Scott v London and St. Katherine’s Docks Co it was held that the
falling of sugar bags was a case where the facts spoke for themselves and there was
no need for direct evidence. Res ipsa loquitor is not a doctrine or a part of substantive
law, but rather, simply a phrase for when the claimant cannot prove that there is a
particular act or omission but the facts are such that it is more likely than not that the
situation took place as a result off some act or omission. There are three requirements
of Res Ipsa Loquitor that are necessary to be fulfilled
1) The absence of explanation- This refers to a lack of an exact reason for the events to
take place.
2) The harm must be of the kind that does not occur if sufficient care is taken- When an
unexplained accident occurs from a thing under the control of the defendant and
medical or other expert evidence suggests that such an accident would not occur if
sufficient care had been taken, then it is a strong case of negligence. In case of Mahon
v Osborne the surgeon left the cotton swabs inside the body of the patient.
3) The instrument causing the harm must be within the exclusive control of the
defendant-
Meaning of control- In Turner v Mansfield, the driver of the dust cart was injured when
the back of the dust cart belonging to the defendant raised itself. Since C was the
driver in control negligence res ipsa loquitor claim by the c failed. Gee v Metropolitan
Railway Co held the railway liable and Easson did not.
When one of two or more persons is in control- In a case where C does not know if it was
negligence of the surgeon of theatre staff it is applied to the surgeonfor being in
 control of the operation. If it is proved tohave taken place when he wasn’t in control it
is set aside. In Walsh v Holst and Co it was held that since sufficient care was taken
by the sub contractors in constructing near the highway, the injured party could not
cclaim damages.
The effectof res ipsa loquitor is if the facts of the occurrence do make it more probable
that a jury may infer that the accident occurred due to want of care on part of the
defendents rather than a lack of it. It provides prima facie evidence of negligence. It’s
effects are described in two ways, one where the defendant is to furnish proof of the
accident occurring with due care on his part where the court must evaluate whether he
was negligent on the whole. The defendant loses unless he proves that the accident
occurred due to a specific cause that does not show negligence on his part, but a lack
of it.In Ng Chun Pui v Lee Chuen Tat since the driver gave a reason for his action of
mounting a pavement since a car cut across he was not liable.