torts

(1) White v John Warwick & Co Ltd [1953] 2 All ER 1021

The plaintiff hired a bicycle from the defendant under a written

agreement which
included a provision that "nothing in this agreement shall render
the owners
liable for any personal injuries". The plaintiff was injured when
the saddle tilted
forward,
Held - The Court of Appeal found the defendant liable in
negligence. The
exclusion clause was sufficient to exclude liability for
supplying a defective
bicycle, but it was not sufficient to exclude liability for
negligence, only liability for
implied terms.

However it must be stressed that, although the rule is used to

limit the
effectiveness of exclusions and limitations, it is not an excuse
for so twisting a
clause to defeat its obvious meaning.

(2) 2. Jai Laxmi Salt Works vs. State of Gujarat, (1994) 4 SCC
1:

In this case the defendants to manufacture salt from sea-water

constructed a dam on a large portion of the land. Due to
negligent construction of the dam, water overflowed from it and
spread all around and damaged the plaintiff’s factory due to
water entering into it. A suit was filed in the court but the
court held that the rule of strict liability will not apply here
even though it is a non-natural use of the land as the damage
arose not due to construction of the dam but due to improper
construction of the same. It held the defendant guilty of
breaching its public duty by exposing the residents of that area

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to risk.

According to Winfield in Winfield and Jolowicz, Tort, (Sweet &

Maxwell: 13th Edition, 1989) at p.443), the presence of several
defences allows the defendant to get saved from bearing the onus
of any liability as if he can prove that any of the said defences
apply to his case, the case will not stand and he shall not be
held liable. To quote him, “we have virtually reached the
position where a defendant will not be considered liable when he
would not be liable according to the ordinary principles of
negligence".

Further exceptions/defences to the Doctrine of Strict Liability:-

§ Damage caused due to natural use of land:- Where the defendant
is able to prove before the court that he made natural use of his
land, he will be exempted from the rule of strict liability
applying on him.

(3) M.C. Mehta vs. Union of India, A.I.R. 1987 S.C. 1086:-

The S.C. of India was dealing with claims of leakage of oleum gas
on the 4th and 6th December,1985 from one of the units of Shriram
Foods and Fertilizers Industries, Delhi. Due to this leakage, one
advocate and several others had died. An action was brought
against the industry through a writ petition under Article 32 of
the Indian Constitution by way of a Public Interest Litigation
(PIL). The judges in this case refused to follow the Strict
Liability Principle set by the English Laws and came up with the
Doctrine of Absolute Liability. The court then directed the
organizations who had filed the petitions to file suits against
the industry in appropriate courts within a span of 2 months to
demand compensation on behalf of the aggrieved victims.

4
KasturiLal Ralia Ram Jain v. State of U. P

Then came the important case of Kasturi Lal v. State of U. P.

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where the Government was not held liable for the tort committed
by its servant because the tort was said to have been committed
by him in the course of the discharge of statutory duties. The
statutory functions imposed on the employee were referable to and
ultimately based on the delegation of the sovereign powers of the
State.
The Court held that the Government was not liable as the activity
involved was a sovereign activity. The Court affirmed the
distinction between sovereign and non-sovereign function drawn in
the P. and O. Steam Navigation’s case in the following terms.
The Supreme Court’s judgment unambiguously indicates that the
Court itself on the question of justice felt strongly that
Kashturi lal should be compensated yet, as a matter of law they
held that he could not be.
There are, on the other hand, a good number of cases where the
courts, although have maintained the distinction between
sovereign and non- sovereign functions yet in practice have
transformed their attitude holding most of the functions of the
government as non-sovereign. Consequently there has been an
expansion in the area of governmental liability in torts.

5.
Overseas Tankship (UK) Ltd V Morts Dock & Engineering Co (The
Wagon Mound) [1961] AC 388

Facts..

The crew members of the Overseas Tankship (UK) Ltd were working
on a ship, when they failed to turn off one of the furnace taps.
This caused oil to leak from the ship into the Sydney Harbour.
Morts Dock & Engineering Co (The Wagon Mound) owned the wharf,
which they used to perform repairs on other ships. The leaking
oil on the water surface drifted to the site where Morts were
welding metal. A supervisor enquired to find out whether the oil
was flammable, which he was assured that it was not. However, a
spark from welding and mixed with debris, caught fire from the
spilt oil and this caused a fire to spread rapidly. This caused

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significant damage to Mort’s wharf.

Issues

The issue in this case was whether the crew could be liable for
the damage to the wharf that was caused by the fire. In addition,
would this also be the case even if it was unforeseeable, but a
result of a negligent act.

Held

The court held that Overseas Tankship (UK) Ltd could not be held
liable to pay compensation for the damage to the wharf. This case
disapproved the direct consequence test in Re Polemisand
established the test of remoteness of damage. This asks whether
the damage would be reasonably foreseeable. In this case, the
damage caused to the wharf by the fire and the furnace oil being
set alight could not be foreseen by a reasonable person.

6.
McLoughlin V O'Brian [1983] 1 AC 410

Facts

The husband of the claimant (C) and their children were involved
in a road traffic accident at around 4 p.m. with a lorry driven
by the first defendant and owned by the second defendant. C, who
was home at the time, was informed of the accident at around 6
p.m. by a neighbour, who drove her to hospital to see her family.
Upon arrival, she learned that her youngest daughter had been
killed and witnessed the nature and extent of the injuries
suffered by her husband and other children. C alleged that the
impact of what she heard and saw caused her severe shock
resulting in psychiatric illness and brought an action in
negligence against the defendants.

Issues

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It was argued by counsel for the defence that, in order to

recover damages for negligently induced nervous shock, C must
demonstrate that he or she is sufficiently proximate to the event
in question, in that they must be present at the scene which they
allege has caused them to suffer psychiatric damage. The House of
Lords were thus called upon to determine the nature and extent of
the duty owed by D to persons whom his actions might cause
psychiatric damage.

Held

In finding for C the House of Lords emphasised that recovery in

such cases was not limited to those who were participants in the
event, and who feared that they or a close relative would suffer
some sort of personal injuries. Citing Chadwick v British
Railways Board ([1967] 1 WLR 912) the duty of D was confirmed to
extend to those who came upon the ‘immediate aftermath’ of an
incident, even if they do not see or hear the incident with their
unaided senses.

7.
Alcock V Chief Constable Of South Yorkshire [1992] 1 AC 310
Facts

A joined action was brought by Alcock (C) and several other

claimants against the head of the South Yorkshire Police. C and
the other claimants all had relatives who were caught up in the
Hillsborough Stadium disaster, in which 95 fans of Liverpool FC
died in a crush due, it was later established, to the negligence
of the police in permitting too many supporters to crowd in one
part of the stadium. The disaster was broadcast on live
television, where several claimants alleged they had witnessed
friends and relatives die. Others were present in the stadium or
had heard about the events in other ways. All claimed damages for
the psychiatric harm they suffered as a result.

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Issue

The House of Lords were called upon to determine whether, for the
purposes of establishing liability in negligence, those who
suffer purely psychiatric harm from witnessing an event at which
they are not physically present are sufficiently proximate for a
duty to be owed, and thus can be said to be reasonably within the
contemplation of the tortfeasor.

Held

The House of Lords, in finding for D, held that, in cases of

purely psychiatric damage caused by negligence, a distinction
must be drawn between ‘primary’ and ‘secondary’ victims. A
primary victim was one who was present at the event as a
participant, and would thus be owed a duty-of-care by D, subject
to harm caused being foreseeable, of course. A secondary victim,
by contrast, would only succeed if they fell within certain
criteria. Such persons must establish:

.A close tie of love and affection to a primary victim

.Appreciation of the event with their own unaided senses
.Proximity to the event or its immediate aftermath
.The psychiatric harm must be caused by a sufficiently shocking
event.
Neither C nor the other claimants could meet these conditions,
therefore the appeal was dismissed.

8.

Haynes V Harwood [1936] 1 KB 146

NEGLIGENCE, POLICE, RISK IN COURSE OF DUTY,

INJURY IN COURSE OF DUTY, VOLENTI NON FIT INJURIA

Facts

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The plaintiff was a police constable on duty inside a police

station, located in a busy street, often attended by many people,
including children. The defendants owned a two-horse van which
was left unattended by its driver in the same street. The driver
had put a chain on one of the wheels of the van that was
subsequently broken. For some reason, supposedly because a stone
was thrown at the horses, they bolted along the busy street
alongside with the van. The police constable saw them from the
police station, got out and managed to stop them but sustained
injuries, in respect of which he claimed damages. The King’s
Bench ruled in favour of the plaintiff. The defendants appealed
to the Court of Appeal.

Issue

Does the maxim volenti non fit injuria (to a willing person
injury is not done) prevent on-duty police officers from claiming
damages for an injury sustained as a consequence of acting whilst
being aware of the risk that this involves?

Held

The appeal was dismissed.

(1) The defendants are guilty of negligence by virtue of leaving

the horses unattended in a busy street.

(2) The defendants must or ought to have contemplated that

someone might attempt to stop the horses in order to prevent
injury.

(3) The police are under general duty to intervene to protect

life and property and therefore, the act of the police constable
and his injuries were a direct consequence of the defendant’s
negligence.

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(4) The maxim volenti non fit injuria does not prevent the police
constable from claiming damages for an injury sustained as he did
not voluntary agree to take the risk but did it pursuant to his
official duty.

9.
Page V Smith [1996] AC 155

NEGLIGENCE – PSYCHIATRIC DAMAGE – FORESEEABILITY OF HARM – VICTIM

WITH PRE-EXISTING CONDITION

Facts

The claimant (C) was involved in a collision with the defendant

(D) whilst both were driving. C suffered no physical injuries as
a result of the crash but, several hours later, he felt exhausted
and the exhaustion had not abated. For a number of years prior to
the accident Cc had suffered from chronic fatigue syndrome, the
symptoms of which manifested sporadically.

C brought an action claiming damages for personal injury caused

by the negligence of D, in that, as a result of the collision,
his condition had since become both chronic and permanent, making
it unlikely that he would be able to pursue full-time employment
in the future. D was found liable and the Court of Appeal allowed
his appeal on the ground that C’s injury was not reasonably
foreseeable and leave was given to remit the case to the House of
Lords.

Issues

The principal issue that the House of Lords were called upon to
resolve was whether, in a claim brought in negligence for
psychiatric damage caused by D, it was necessary to establish
that this particular type of harm was a foreseeable consequence
of D’s negligence, or whether it would suffice merely that some
form of compensatable harm was foreseeable, such as a physical

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injury.

Held

The House of Lords found in favour of C, albeit by a bare

majority (Lords Keith and Jauncey dissenting) and held that,
provided it was reasonably foreseeable that C would suffer some
physical injury as a result of D’s negligence, it was not
necessary that the type of harm caused was itself reasonably
foreseeable; C was thus within the ambit of D’s duty of care.
10.
Hughes V Lord Advocate [1963] AC 837

Remoteness of damage in tort law; that the kind of damage must be

foreseeable, rather than the specific damage that actually
occurred.

Facts

Workmen employed by the defendant had been working on a manhole

cover, and then proceeded to take a break, leaving the hole
encased in a tent with lights left nearby to make the area
visible to oncoming vehicles. Two young boys, the claimants,
encountered the uncovered and unattended man hole and proceeded
to climb down to see inside of it, bringing with them one of the
paraffin lamps left out by the workmen. The lamp was subsequently
dropped and caused a significant explosion which left both of the
boys with extensive injuries from the fire. The defendant
submitted that such an action would have caused this outcome was
deemed unforeseeable.

Issues

Whether a party can be found liable for injuries that could not
have been specifically envisaged as resulting from their actions,
even where the kind of injury was a foreseeable consequence.

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Held

Here the House of Lords found for the claimants, and held that
whilst it was indeed reasonably unforeseeable that a dropped lamp
in the manhole would have resulted in an explosion of the size
that occurred, this did not alter the fact that it was reasonably
foreseeable that a person may have burnt themselves on the
unattended paraffin lamps. The emphasis here was placed on the
foreseeability of the kind of damage rather than the specific
actual damage as this was considered too high a standard.

11.

Smith V Leech Brain & Co Ltd [1962] 2 QB 405

Law of Tort – Foreseeability – Negligence – Damages – Remoteness

of Damage – Eggshell Skull Rule - Causation

Facts

The complainant was employed as a galvaniser of steel for the

defendants, Leech Brain & Co Ltd. He had been working and
operating a machine in the workplace, when a piece of molten
metal burnt his lip, after he stepped out from behind the
protective shield. Although the burn was treated, he developed
cancer and died three years later. The complainant had a
pre-cancerous condition, before the burn had taken place. When he
died, his widow brought a claim against Leech Brain & Co Ltd
under the Fatal Accidents Act.

Issues

The issues in this case concerned whether the employers could be

liable for the full extent of the burn and cancer that had
developed as a result or would a person’s predispositions matter
in the award of damages.

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Held

The defendants were held to be negligent and liable for damages

to the complainant. The complainant burnt his lip as a result of
the defendant’s negligence in the workplace. The employers are
liable for all of the consequences of their negligence; thus,
liable for the employee’s death. His predisposition to cancer did
not matter, nor did the results of the injury. The question of
liability was whether the defendant could reasonable foresee the
injury. Lord Parker stated that the eggshell skull rule and
taking the victim as you find them has always been the
established law and this was not affected by the ruling in the
Wagon Mound case.

12.
South Indian Industries Ltd. Vs. Alamelu Ammal (AIR 1923 Mad.
S6S)

In South Indian Industries Ltd. Vs. Alamelu Ammal, AIR 1923 Mad.
565, case the defendants were carrying on the business of
breaking up of cast iron by dropping of heavy weight on the iron
as a result of which the broken pieces of cast iron used to fall
at distance of 4 to 5 yards. One of those pieces struck the
plaintiff standing at the distance of more then 70 yards.
Defendant took the plea of volenti non fit injuria as the
plaintiff was an employee. Defendant was held liable, as he could
not prove that at such a valid distance the plaintiff had
knowledge of the risk, he fully appreciated the risk and he
freely and voluntarily accepted the risk.

13.
Bourhill V Young [1943] AC 92

NEGLIGENCE – PSYCHIATRIC DAMAGE – DUTY OF CARE – PROXIMITY -

REMOTENESS

Facts

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Mr Young had been negligently riding his motorcycle and was

responsible for a collision with car in which he himself suffered
fatal injuries. At the time of the crash, Mrs Bourhill (C) was in
the process of leaving a tram about 50 feet away. C heard the
crash and, after Mr Young’s body had been removed from the scene,
she approached and witnessed the immediate aftermath. C was 8
months pregnant at the time of the incident and later gave birth
to a stillborn child. C subsequently brought an action against Mr
Young’s estate, claiming she had suffered nervous shock, stress
and sustained loss due to the negligence of D.

Issue

The principal issue on appeal to the House of Lords was whether D

owed a duty of care to C. In order for such a duty to be found it
had to be said that that C was both sufficiently proximate to the
incident itself and, if so, that D ought reasonably to have
foreseen that, in driving negligently, he might cause psychiatric
damage to a person hearing the crash from C’s position.

Held

D was not liable for any psychiatric harm that C might have
suffered as a result of the accident. It was not foreseeable that
C would suffer psychiatric harm as a result of D negligently
causing a loud traffic accident, nor was C sufficiently proximate
to the scene of the crash itself. D, therefore, could owe no duty
of care to C.

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*Amit Roy* (J)

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