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    Mokals - Law of Tort 1 of 2

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    Saree ee ee aaa Rees ids Acces Ylaca rns 2 Author — Prof. Prakash K. Mokal. “LAW OF TORTS” | & “THE CONSUMER PROTECTION ACT, 1986” Year 2018 - 2019 A Complete Book For All Universities With Important Notes Including All Question Papers Update With Solutions ALL IN ONE For Fi mester & Three Years 1" Semester Five Years 5” Semester & Three Years 1" Semester By © Prof. Prakash K. Mokal B.A, (Bagish Special LLM. University of Mumbai (Former Prineipal, Government Law College, Mumbai) Sole Distributors Gargi Wordworld, Pune Tel. : 020-24348881 Shrutishreya Publications Pvt. Ltd. | Tel. : 022-25420740, © Prof. Prakash K. Mokal B.A. (Special English); LLM. Published by Shrutishreya Publications Pvt. Ltd. “paradise Tower, Office No. 304, 3" Floor, Gokhale Road, Next to McDonald Hotel, ‘Opp. Thane Rly Stn. (W). Pin ~ 400 602. Telephone ~ 022-25420740. Price : Rs. 280/-. ‘Type setting Gargi Wordworld, Pune 9423580449 Printed by Shree Ambika Offset, Pune copyright work which may ing is a violation of and criminal prosecution for dat Photocopying/Zer result in both, Copyrights Reserved by the Author CONTENTS (ay LAWOFTORTS — =70 Marks cuaprers: PAGE 61087 1: Introduction to Law of Torts, IL: Definition, Nature, Scope and Objects of Torts IIL: Vicarious Liability, ITV : Extinguishment of Liability or Modes of Discharge of Torts Vi: Justice in Torts/Doctrine of Sovereign immunity/General Defences. VI : Defamation VIL: Torts Against Body and Property, VIII: Negligence, Contributory Negligence, Remoteness of Damages. IX: Public and Private Nuisance. X:: False Imprisonment and Malicious Prosecution. XI: Strict Liability XIL: Deceit, XIII: Torts to Domestic Relations/against persons.& personal relations XIV: Legal Remedies. (B) CONSUMER PROTECTION ACT, 1986 cHarrE PAGE NOS. 88 to 136. I: Consumer movements- Historical Perspective Hl: Consumer, the Concept... Wl: Unfair Trade Practices IV: Consumer of goods. 0 Marks V: Supply of essential commodities Vi Consumer safety. VIL: Commercial services VILL: Enforcement of consumer rights TX: University Q. Papers (update) till June, 2018 All India Bar Examination Guidelines Addresses of Main Distribution Centres & List of the Book 4 thor = rot Pr Mb “Nihil Nisi Bonum’ “Only The Best Will Do"] Salient features of the Book, 1) This Book is based on University Recommended Books. 2) Full coverage is given to the revised syllabus of this subject prescribed by all the Universities, 3) This Book is arranged Chapter-wise, and all the Topics along with relevant Case Laws are also discussed in their sequel order, which will certainly enable the students to understand them. 4) All Important topics in the respective Chapters are carefully prepared so to provide detailed "Answers to all Questions" and "Answers to all Short Notes" ‘appeared in the University Examination, 5) Leading Case-Laws are discussed in detail 6) Various Definitions have been simplified by explaining their ingredients with sufficient illustrations and examples so.as to make easier for the students 10 understand them. 7) Important "Objective Questions” including "Situation based Problems with relevant solutions, and all Sections of the Consumer Protection Act, 1986 are siven_in this Book-Therefore, Sudents need not refer any separae objective questions, or any Bare Act, 8) University Exam, Question Papers with ions, including February, 2018 & June, 2018 [total 27 Papers update] are given at the end of this Book. 8 pot oleate tesa Revised Syllabus (Law of Torts = 70; The Consumer Protection Act, 1986 30). Law of Tort » Introduct of Toy Definition, Nature, Scope and Object of Torts : Wrongful act ~ violation of duty imposed by law ~ duty which is owed to people generally (in rem) ~ Damnum sine injuria and Injuria sine damnum, ‘Tort distinguished from Crime and Breach of Contract. The Concept of Unliquidated Dames, Changing Scope of law of Torts : Expanding character of duties owed to the people generally due to complexities of modern society Objects — Prescribing standards of human conduct, Red:essal of ‘wrongs by payment of compensation, Prescribing unlawful cenduct by TI) Principles of Liability in Torts : Fault; Wrongful intent; tothe Liability without fault; Statutory liability Place of motive in tons IV) Justice in Tort: Volenti non fit injuria; Necessity; Private and Publi: Plaintiff's default Act of God; Inevitable accident Private defence; Statutory authority Judicial and quasi-judicial acts; Parental and quasi-parental authority, Y) _Extinguishment of Liability in certain Actio personalis moritur cum persona ~ exceptions; Waiver and Acquiescence; Accord and Satisfaction; Limitation vD vi) vu Ix) x) xD) Express authorization; Ratification; Abetment / Special Relationships Master and Servant ~ Arising out of and in the cou-se of employment Who is a Master ? — The Control Test ~ Who is Servant ? - Borrowed Servant — Independent Contractor and Servant, distinguished Principal and Agent Corporation and Principal Officer, ‘Torts Against Persons and Personal Relations : Assault, Battery, Mayhem; False Imprisonment Defamation — Libel, Slander including law relating to Privileges; Marital relations, Domestic-relations, Parental relations, Master and Servant relations; Malicious Prosecution; Shortened expectation of life; Nervous shock, Wrongs Affecting Property ‘Trespass to Land, Trespass ab initio, Dispossession; Movable Property —Trespass to Goods, Detime, Conversion; Torts Against Business interests ~ Injurious Falsehcod, Misstatements, Passing Off Negligence : Basic Concepts; Theories of Negligence; Standards of care, duty to take care, carelessness, inadvertence; Doctrine of Contributory Negligence: Res ipsa locuitur and its importance in contemporary law, Liability due to negligence : Different professionals; Liability of common carrier for negligence; Product liability due to negligence : Liability of manufacturers and business houses for their products. Nuisance Definition, Essentials and Types; 2 Author = Prof. Prakash K. Moko), xID xv) xv) Xxvp, XVI) XVII) xIX) Xx) Acts which constitute Nuisance ~ Obstructions of highways, Pollution. of air, water, noise, and Interference with light and ait Absolute / Strict Liability : The Rule in Rylands v/s, Fletcher; Liability for harm caused by inherently dangerous industries. Legal Remedies : Award of damages ~ Forseeability and directness Injunction; Specific restitution of property Extra-legal remedies ~ Self-help, re-entry on land, re-caption of goods, distress damage feasant and abetment of nuisance. Consumer Movements : Historical perspectives : ‘Common law protection : Contract and Torts Consumerism in India : Food adulteration, drugs and cosmetics — Essential commodities, Consumer — the concept : General perspectives; Statutory and government services : to be ineluded or not ? Definition and scope : The Consumer Protection Act, 1986 (CPA); ‘Who is not a consumer 2 Unfair Trade Practices : Misleading and false-advertising: Unsafe and hazardous products; Disparaging competitor Business ethics and business self-regulation; Falsification of trade marks Consumer of Goods ‘Meaning and defects in goods; Standards of purity, quality, quantity and potency Statutes : Food and drugs, engineering and electrical goods ‘Supply of Essential Commodities Prescribing standards of quality — BIS and Agmark ‘Consumer Safety : Starting, distribution and handling of unsafe and hazardous products; Insecticides and pesticides and other poisonots substances, Service Deficiency ~ meaning; snk Moka, Professional services: ‘Medical services How to determine negligence; Violation of statute: Trent of medical service : Violation of Pu rights; esi og services: Duty towards court and XY client ~ brcak of confidentiality ~ negligence and misconduct: Public Usilties; Supply of electricity: ‘Telecommunication and postal services; Housings Banking, XXL) Commercial Services + Hiring; Financing: ‘Agency Services: XxH) Enforcement of Consumer Rights: er Protection Act ~ Jurisdiction, Consumer Forums under the Consus Gone and Functions ~ Execution of orders Judicial review ~ PIL Remedies; Administrative remedies. dilemma, Class action ~ MTV Chapters given. in-the-CONTEN fives ful coverage Co the Slabs] Recommended Read BesGetanlal and-Dhirajial— The Law of Tors 3: pS. Achuthan Pillai ~ The Law of Tons Salmon Torts. 3, Avtar Singh ~ The Lé 4. Saraf and Dalal ~ Law of Cons J. N-Barowalia ~ Commentary on h 1d and Heaston on the Law of aw of Consumer Proton, Principles and Pracic® ‘sumer Protection in Indi. 1e Consumer Protection Act, 1986, Se 8th Prot rats Moat, CHAPTER —1 INTRODUCTION LAW OF TORTS IN INDIA Earlier in India, there was hardly any distinction between civil wro wrong. Under the Hindu Law and Muslim La, tort had a much nantower conception than the tort of English law. Both the wrongs were made punishable under Hindu and Muslim system of law. The punishment for crimes in these systems, occupied a more protinent place than ‘compensation for wrongs. Even wrongs were made punishable, lke eximes. The law of tort as administered in India in moveen times, is the English law as found Suitable to Indian conditions and us modified by the Acs of the Indian Leyislatre. Sir Frederick Pollock prepared a drat code of Lav of Torts for India, but it was never enacted into law. The Indian Law of Torts based on English law, is continued by Arce 372 of the Constitution which has been interpreted t continue alsothe Common Law Principles applied in India, Its origin is linked with the esablishment of British Courts in India. The first British Courts established in India were the Mayor's Couns in the thre presidency towns of Caleuta Madras and Bombay. ‘The Englisimen administering these Cours, normally, drew upon (obtained from the source ofthe Common Law and saute law of England as fouid suitable to Indian conditions wale deciding eaves “according to justice and right, Therefore, the Lav of Tonts is part of the Common Law, and it was thus, that the English Taw of tots'came to be applied in he cities of Calcutta, Madkas, and Bombay: ‘The Law of Tors is ased 7 certain principles which wete universally recognised and accepted by the people, These prinaples are incorporated (included) in the Taw of tits in the form of different maxims, The foundation of law of tons is that, in a civilized society, people should adhei reasonable behaviour and respect the rights and interests of one andthe. A person's intrest can be protected if he is given compensation by the person who has violated his rights resulting imo a Toss or damage. 1s as simple, if you compensite another for wrongs commited (intentionally or unintentionally) by you causing legal damage to that another, then he oo would pay for: the legal damage which is caused to you by is wrongful at. Thus the law of tots is based om the law of equity and justice. I isnot a erime, as wrongful act may be committed By you without any guilty mind behind ic (which is an essential element of crime). Therefore, tort is a chi wrong, for which the remedy available is by way of compensation mainly, nd not by way of punishment It has also been held tha, Section 9 ofthe Cale of Civil Procedure, which enables Civil Court co try al suits ofa civil nature, impliedly confers jurisdiction to apply the law of torts as principles of justice, equity and good conscience -- Union Carbide 540. The law of tris or civil wrongs in Inia is thus, almost wholly the English law which i administered a rules of justice, equity and good conscience. The Indian Courts, however, before applying any rule of English law can sce whether iti suited tothe Indian society and circumstances, Recently, in Jay Laxmi Salt Works Prt Lid, vs State of Gujarat, (1994) 3 S.C.492, page S01, SAHAL J. observed “Truly spe ‘© injuee lass sticty for social a aking entire °F hatm ‘othe intentional or close fina clopmen, ly the eve 'Y growth of Y cou and struc innocent etpanding an © society ‘8 more conducive” {aon meaty ha oe st Tet ol Ong hovz ol racus Bette reenes sa litility than the rue in Ryland ew tithe year 1987 inthe care crake lsd down in this cara we on those of MC, 2 82 right rimitive to ity. Even the liberal Fletcher was tai ‘Mehta vs: Union of un. _ Author = Prof. Prakash K. Mokol CHAPTER — Il “DEFINITION, NATURE, SCOPE AND OBJECT OF TORT” | MEANING OF TORT The Word wor” the French word. In Roman law it means, “deli. In English law it ‘means, ‘wrong’ twas introduced into the English aw by Norman jurists, The word “tot” is derived from the Latin tenm “tortum’ means, to twist, and implies conduct which is twisted or tortuous, The firs reposted use ofthe word tor isin Boulton v/s. Hardy 1597; Uniom of india Satpal Dharunvir, ATR 1969, EFINITION OF TORT: AND NATURE OF TORTUOUS LIABILITY now meats, a breach of some duty independent of contrac, giving rise to a civil cause of action and for which compensation is recoverable eH be defined as ‘A i Independent of contract for which the appropriate remedy i an action for unliquidated daspages ty aise from the < ‘owads persons generally, and is breach is redresible by an ation for yniquidated damages” | = Wingfield & Jolowicz on Tort (1984) 12" Ean. p3 | The above definitions of “tort” as givén by Salmond and Winfield were quoted by the ‘Supreme Covt of India in Jay Laxmi Salt Works (Pvt.Ltd. v/s. State of Gujarat ~1T. 1994 (3) S.C. 492, P51 A civil injury for which an action for damages will not lie is not a forte. puble huisance, for which no action for damages will Ke by an individval member of the publics even ithe suffers Fom the nuisance. [For private muisance, he can seek damages] ‘The person commiting & tortor wrong i called a tortfeasor or wrong does, and his misding is atortuous act. ‘The principal aim of the law of tors is compensation of victims or ther dépendants ‘Grant of exemplary damages in certain cases will show that deterrence of wrong. does is ao, ‘nother aim ofthe law of tort, a, Aton = Pro Prt Koa, CONSTITUENT ELEMENTS (INGREDIENTS) OF TORT: 1) There must be a wrongful ac Committed by a person. (breach of duty): 2) The wrongful act must give ise legal damage. violation of absolute private right); and 13) The wronaful act must be of such nature as giverse toa legal remedy in the terms of an section for compensation. 1) WRONGFUL ACT: “Te act complained of shold, under the circumstances, be legally wrongful as regards the party complaining; that i, it must projudiially affect im in some Tega right" Rights available toa person can be divided in to i) Private eights, and ii) Public rights 1) Private Rights ~ Private sights which belong to a panicular person to the exclusion ofthe worl at large, These rights ae: a) Rights of reputation bs Right of bodily safety and freedom: c) Rights of property All dese thre private rights can be described a Fights eating wo mind, body and esate. i) Public Rights— Public rights which belong to the public in general, common to the members of the society State For example, in case ofa to! of publi nuisance, public rights which betong tothe pubic in general, are violated, For every right, there is « corresponding duty. Obligation consists in doing son Therefore, obligation consists in performing some act or doing some act. hing Liability for tort, therefore, arises when the wrongful act complained of amounts ether ‘ora nffingement-of-§-leal-prvate-right-or-¢-braach-of-violtion-of-a legal duty- Such a ‘wrongfl act violates the legal righ, and therefore, synonimous to the word “injuri i, legal Injury or violation of a absolute right, The wrongful at is actionable if tis a tepal wrong and fot otherwise. Therefore the maxis "injuria sine damnum” and “damnum sine ijaria’ TP) LEGAL DAMAGE, OR LOSS, OR HARM SUFFERED BY THE PLAINTIFF: [Av arewit of the wrongful act of another {-e, defendand, a legal damage mst be caused tothe plain Feom the point of view of presumption of damage, rights are classified into 1). absolute rights (oo proof of sctual damage or loss is necessary), and it) qualified rights (poof of aemal damage or losis necesstry) ‘When an absolute rights violated (injuria, the law conclosively. presumes damage or Joss, altiough the person to whom the wrong is caused may have suffered no pecuniary Toss ‘whatsoever: The damage so presurted, is called Tepal damage. Violation of absolute rights, therefore, actionable per se, (by itself) i. withou: proof, of any damage oF los. In case of qualified rights, there is no such presumpsion of fegcl damage, and therefore, the Violation of such rights i ationable only on proof of actual damage or Joss. in ‘other words, in ease of an absolute right the legal injury Cnjuria is eomplete the moment the ahuolue right is violated iespective of whethor its accompanied by any atual camage or los, ‘Mhereas, incase of qualified righ the injury or wrong is not complete unless the violation of ) a ——__13._suthor = prot. posh &. Mok results in actual or special damage or loss. Damm is meant damage inthe substantial Sense of money. loss of comfort, service, health or the lke. By injuria meant 4 tonious act resuling into a legal damage The real signifiunce of legal damage is illustrated by two maxims, namely )“Injuria Sine Damnum™ and fi) SDamnum Sine (or absque) injuria” Ik means, “Tegal injury (violation of an absolute private righ) without actual damage or loss" Injuria Sine Damnum is actionable, that is, any violation of an afsolte legal ight (injuia) is actionable though there is no actual damage or Toss (dann) caused to the person ‘hose absolate legal right is violated. Hee, the law presumes damage or os 1 the person ight (absolute private right) is violated, because, certain acts are o likely to real in o their mischievous tendency that he ls prohibits them absolutely Linjury Qegil damage) without actual damage or loss Cinjuria sine damnum) is ‘The leing case of Ashby v/s, White isilustrative of violation of an absolute ight Ashby v/s. White (1703) ~ (Refusal to register vote! The defendant Mr. White who was the returning officer at a voting bookh, wrongfully and maliciously refused to register a duly tendered vote ofthe plaintiff Mr “AxDbY, who was ly qualified voter ta Parliamentary election, The candidate For whoth the vote was so tobe tendered, was declared elected, and therefore, it was argued that, no actal damage or loss vas suffered by the rejection of the plains vote, It vas held that, the action would lie aginst. the etuming officer, a he ha acted maliciously. and deprived the plaialffof hy ight to vot Thus, there is legal injury without acial loss or damage, and therefore, defendant was held liable ‘or compensation, 4 Marzeti v/s. Williams (1830) (Bankers case) Banke: refusing customer's cheque - An action will ie against a banker, having sufficient ands in his Bank belonging toa customer, for refusing to honour his cheque‘ltho gh the custome tid not thereby sustain any actual oss or damage z SDAMNUM SINE INJURIA": ‘This maxim means, an “actual and substantia oss without infingement of any legal right” Where thre is no infringement of any legal right, though there is acta loss caused to ‘he penn, no action would lie, Mere loss in money oF money's worth damnum) in absence Of infringement of legal right (injura) does not constitue a to, and therefore the et causing tere damage is not actionable. In order to take an action under the law of tot, the plaintiff ust, tetefore, prove legal injury ie, violation of his right injuria). © © Damage without injury damnum sine injuria) is not actionable, There sre many sets, though harmful, are not wrongful in the eyes of law. No-one sto be Conidered« wrongdoer who merely avails himself of his legal sights though ites in mage o loss to another. The exercise of one's common or ordinary right within reasonable Mimits, doesnot give rise to an action in tort merely because it causes damage to another us, Abc Pot ea sh | > aw case: Bis Gloucester Grammar School Case (1410) (Setting up ial schoo) A wench re cetndant wha ws pood sco! master, se yp # val shoal next dor fo the pins nae Moghul Steamship Co. v/s, Me Gregor, Gow And Co. (1892) (Driving rival Ee trmder out of mart) u ‘The two maxims suggest that there are several such moral wrongs for which there is no 7 Las legal remedy ie. they are not actionable though they cause great loss or detriment and on the - ‘other hand, there are legal wrongs for which the law does give a legal remedy ie. they are 9 me ‘actionable, though there is only violation of a legal right and no actual loss, whatsoever = 1h LEGAL REMEDY in ee _ 2 ecco eal wong ta ome heer = legal remedy are co-telative terms. The underlying principle is, wherever a man has a sight, the only’ There are moral or ethical wrongs for which there is no remedy, and therefore, they do artic ot amount to tort, If the damage is suffered due to moral wrong it is not actionable. This is after from an immoral cause). te Fe Hegarty is Shine (878): eget Shin aT ah ce death eof wich ws once pISTINCHIOS BENWEEN- ess ot Carici x 1) A contact is founded upon consent ‘Atortis infited against or without consent, 2). A-coneact necessitates privity between the parties to its In tort no privity is needed, Plantif and defendant may be totaly strangers to each oer. ts. ptr = prot. Prokash Mo 3) Atortis a violation of a righ in rem ie. ofa right vested in some determinate person end avilable against the world at are. A breach of contract is an infringement of @ right in personam ie. of a right available only against some determinate person or body of persons. 4) Nature of the duty that is volted: In the ease of a tort, the duty is one imposed hy the law an is owed to the e large In the case ofa contract, the duty is fixed by the wil and consent ofthe parties. and itis ‘owed to a definite person or persons. Thus, if A assaulis B, of damages B's property without lawful cause or excuse, it isa tort. Here, the duty violited is duty imposed bythe Jaw, and that isthe duty not do unlawful harm to the person or property of another. But ICA apres to sell goods to B fora price, and either party fail to perform the contrat the cases one of breach of contract. Jn contract, the duty that is violated is a specific duty owed by the either party tothe other lone. Ina tort ita general duty owed by the consmunity at lage Ina breach of contract, the motive for the breach is immaterial In tot, it soften taken ito ‘consideration, * 5 6 D Law of torts is aimed at prevention of losses. Whereas, the law of contrac sims to see that the promises made under contract are performed. 8) The same act may amount to a tort and breach of contract, Persons, such as caries solicitors, or surgeons, who undertake to discharge certain duties and voluntarily ener ino contracts forthe due performance thereof, willbe liable fr neglect or unsklifulines, ether in an action fora breach of contract; or in tor, to party to the contract; or in tort only, to & person who suffers injary. The breach of such contract amounts also a tor, because, such persons would be equally Table even if there was no contrat as they undertake a duty independently of eny contract. For instance, A father employs a surgeon to attend on his son. The son is injured by unskllfal tweatment. Here, there i contact between the father and the surgeon, but one between the son ‘an the surgeon: The Tate, therefore, may sue the surgeon in sonra, Bul tie son ean Se hi only in or ~ Gladwell v's. Stegall, 1839) § Bing NC 733 :8 LICP 361 Inthe celebrated case of Donoghue vs. Stevnton, & manufacturer who sold substandard antici to a retailer who sold it a customer, Was he Habe tothe friend of the customer who affer consuming it became il. The manufeturer was under a contractual ity tothe retailer and was in breach ofthat duty, but, he also owed a duty in a tort fo take reasonable care not to harm the consumer ~ Donoghwe v/s. Stevenson, (1932) AC $62 (H.C. (this ease finally exploded the “privity of contract fallacy”). (Abbreviations 10 remember above points ~c p rd, sm ai). DISTINCTION BETWEEN ; Tort and Cri 18 tres also widely different from a crime, 1D) Difference aso definition A tort is a civil wrong independent of contact for which the appropriate remedy is an action for unliquidated damages", A crime is violation of aright, considered in reference to te evil tendency of such ‘violation as regards the community at large” — Blackstone) gig Ao etek Ea aor Brot rate, Akal, 2) Difference as to procedure: Civil justice (tefers to civil wrongs) is administered in civil courts by civil hearings fccording 10 the procedure established in Civil Procedure Code. Criminal justice is ‘Administered in criminal courts by criminal trials acconding to the procedure established in Criminal Procedure Code. '3) A tort isan infringement of the private or civil rights belonging to individuals; Whereas, a érime isa breach of public rights and duties which affect the Whole community 44) According to Blackstone, civil wrongs are private weongs and criminal wrongs re publi ‘wrongs. Private wrongs are infringement of private or civil rights belonging to an individual tnd criminal wrongs are infingement of pubic rights which affect the whole corm 5) ntor, the action is Brough bythe injured party. In crime, the proceedings ate conducted in the name ofthe State and guily person is punished by the State. 6) Intort the wrongdoer has compensate the injured party; whereas, in crime, he 1s punished by the State in the interest cf the society 17) The social equilibrium i maintained dhrough the machinery of criminal justice (by ppnishments); Enforcement of civil rights and libris is done through the weapon of civil Femedies (such as damages, delivery of goods, injunction, payment of money, divore, judicial separation, restitution of conjugal rights, maintenance order, tc) 8) In tort, compensation is the main purpose of the civil proveedings. In crime, (Criminal proceedings) compensation is ancillary’ purpose ofthe primary (main) purpose of punishing fhe offender. (Criminal Courts are authorised. within certain limits and in certain ‘iccumstanees to order payment of a sum as compensation fo the person injured out of the fine imposed on the offender: S. 357 ofthe Code of Criminal Procedure Therefore, it may be conchded that, difference between civil wrong and erime, lies in the fact that, whereas, “civil bility is emi in lit, om the other nd. is, onthe whole, pei (Abbreviations to remember above points -d pip, ae, m 1). 9 Malfeasance”: The tem ‘malfeasance’ means, the commission of an unlful act, The term is generally ‘made applicable to certain unlawful ats sich are ationable per se (by ise). it does not eauie any proof of intention, negligence or malice onthe par of the defendant. For example, the act of trespass isthe act of malfeasance, and tefefore, its actionable per se ie. plaintiff can take an action against the trespasser for his nee act of trespass, though there is no negligence or malice on the pat ofthe trespasser. “The term ‘misfeasance' means, the improper of some lawful act, Under certain circumstances, a man tas a duty to perform a arcu manner, if he falls to perform that act ina proper manner, it will bean act of ‘miseasance’. The tot of negligence ny arse from the improper performance of some lawful act Le act of ‘misféasance'. For ‘example, if doctor performs an operation by using rusted knife or leaving that knife in the ‘Sfomach, ete, The tort of nuisance by improper use of one’s own propery, is also the example of misfeasance. 2, Author = Prof. Prakash . Moko! The term. ‘non feas tee" means, failure or emission to perform some act when there is an obligation to perform that ac, (See Jai Lax Salt Works (P). Lids State of Gujrat, 1994 S.C A tor of negligence may arse from the fullur oF omission to peor an obligtor When a person owes duty towards another to-do particular act, a failure to da that aet may result in an injury to dt another, thus. the non-feas 1 of such an act gives rise to a cause of (IMPORTANT UNIVERSITY EXAMINATION QUESTIONS ) Q.1) Define “ion” and explain ts essential characteristics OR Define “tort” and disuss the constituent elements of tort. OR Tort isa civil wrong other than breach of contract for which the remedy is a Common law ‘ction for unliquidated damages". Discuss, oR Define ‘tr’ and explain how it differs from erime and contract (Apr 2004) OR Disenss the nature ofa tor und distinguish it from other types of wrongs. (Apr-2001) OR "A tort is violation of right in rem is. ofa right vested in some determinate person either Personally or as member of the community, and is available against the worl at large” Explain fully the tatement and bring out the difference between tom and contract. OR Define “tor” and explain iis” ingedienis. Distinguish between tortuous Tiabilty and contractual lability (Ape 2002) oR “Tortuous liailty arises ftom the duty primarily fixed by thew thin duty i owards-xperson generally and its breach is represible by an aetion for unliquidated damages” ~ Dias, (Dee.2002) 0.2) “Legal damage is nether identical with actual damage, nor is it necesarly pecuniary Discuss the statement in the light of two maxims with ease laws, é OR “Every injury imparts damage, bun every damage isnot injury Discuss the statement in the light ofthe decided cases oR To consitute ator, the wrongful act must result in legal damage that gives toa legal remedy’ Discuss on Discuss the maxir ‘Damnum sine injuria’ and “Injuri sine damnum’-iting relevant ease laws, (39.2003) 0.3) Write sore notes on: D Ashby vis White i) Gloucester Graramar School Case, (Apr 200: ii) Ubi jus bi remestum, (Apr: 20083) CHAPTER - 111 “yICARIOUS LIABILITY” (Liability for Wrongs ‘Committed by Others) ‘act committed by bim alone; But, ther Strongful act committed by aothed held lable forthe wronaful Generally, person is fhe he canbe held Table fo ‘person may be ble espe of wrongfl at of isons of se three ways se ec auorised the particular act (ability br ratifiatn 4) Ashaving rat 2) Ac standing tare oer person in a tation elinge=ponse = wrongs don py that person (Labity by relation); stuous act commited by others (Liability by bstment)- 3) Ashaving abetted fhe A) MARILITY BY RATIFICATION: An get done for anofier by a.person not assuming perc ugh without any prevedeut author, becomes 1h a Perot for tom the act done), -sbenweny-ailed 3 e 27 ee is bound by that act "Ono raha rirorahi 21 mendato priori oequ para peace ean of an at relates back an thereupon Becomes equien 19% rrevious to act for himself, but for sue) othe cof the rinipal (such othe pal. In that case, the “Three considerations arise before a person can be held Tisble 1) teaost be showntta the person aiying the act railed t wih ll snowledge of ts being vc age Sind a principal by subsequent satiation a, were dong al HO 6 jc own acgount eannot be done By a perso t's bball, What dane by a person on aD immaterial whether the autor be B¥eD DOr 2) Only Un behalf of another, ii i Subsequent to the ac 45) Anact which is egal and voi, incapable of aifeation. B) LIABILITY BY RELATION 1) Master and Servant 4) Nure of master’s abii 1 thd persons or he tort commited fe MES re of mat A oe tort commited By Hi Sa sn Sperone. let the supeior be bel espoaibl’ an {s-based on te principles of ‘Respond ste om fact er ee" who doc the act hrouph ates dot himeell” a Dae: RS RL: Teen eer es eto oe 49, Author Prof. Prokash K Mokal ‘Why should a master be held fable for the tris commited by his servant ja doing his ‘usiness even when his conduct isnot blameworthy nd though he has used the preatest posible ‘eae in choosing the servant 7 Reasons ‘The reasons forthe recognition of the liability are that £) Master's power of selection of his servant 18) Payment of wages or other remuneration by the maser Masters right to contol the method of dong the work by his servant, Incase ofa servant, in Addition to directing what work the servant isto do, a master can also give directions to control the manner of ding the work Jn) Master's right of suspension or dismissal of his servant ¥) There ought to be femedy against someone who ean pay the damages, and the master is expected to be in a better position for paying the damages than the servant, (Principle of Respondent Super). ‘iItcan be seen from the maxim ‘gu faci per alum fi per se, that the servant's personality ‘was merged in that of his master vii) Inthe words of Chelmsford L.C., “thas long been established law that, a master is ible to third persons for any injury ot damage done through the negligence or uaskilfllness of Servant acting in his master’s employ. The reason oF thsi, that every act which is done by a Servant inthe course of his duty s regarded as dane by his master's orders, and, consequently it fs the same as if, it were the master’s own at, according to the maxim, ¢u fac pe allo fact pperse: Bartonshill Coal Co. vs, Me Guire, (1858) 3 Maca, 300 (306) 1) Extent of tabliy When master is liable othe third person and when he isnot lable ? 1) Master is vicariously lable for the acts of his servant acting in the course of the ‘employment. Unless the acts dane inthe course of employinent, the servant's act doesnot nake the employer liable 2) The act most be- wrongful act suthorisedby the master, (@g. mast’ der seve vehicle With hgh speed i the grea where iis no allowed) oF a wrongful and utithorised mode of “oing some act authorised by the master (eg, overloading the vehicle carrying goods, et) 3) Ifthe servant, atthe time of the acident, isnot acting within the Gourse of employment but ' doing something for_himself, the master is not liable. Stete of Meharashia vs Konchanmala Vijaysing Shirke ATR 1995 SC 2499, 4) Ais the link of the master's business with the servant's wrongful act which makes the ‘ister liable. So, the plaintiff to obtain a jugement against the master, “must establish a ‘latonship_hetween the servant's act and the master's business, The question will be Whether the servant was just doing the job badly or not doing the job at all, doing his own thing instead 29, Author = Prot Prakash K. Moka, fl act ofthe servants not s0 connected with Th other words, if the unauthorized and wrong a esnet rect arto Be a mode of doing it (elling conductor 1a dive mnt bus) 8's £8 a eae the maser snot responsible fon such case, the servant not ating nthe indepe ott empluyment but has gone outside of it~ Kanchammala’s Case “in the Course of employment”: aan coe cesgcs these days of vicarious Kbility ae those, where a master held Hable for iigenc of is servant in diving his vehicle nthe course of employment aeaeet Corporaon was held able for the negligence’ of i servant in diving aa ce Ceroration onthe Corporation's business — Olga Hall y/- Kingston Comm AIR 1941 PC 103. CASE LAW Beard v/s. London General Omnibus Co. (1900) QB 530: 1 a was fjord byte negligent driving ofthe conductor of an oma, ee athe cod af joumey, on his own nitive, andin the absenes ofthe deve. took cares Of 1 ic Nore it round trough some neighbouring bye-strets apparnily Wilt 1 omnis or tning iv ound to be ready forthe next journey. It was Beld tat masters vere mo inet he nrigence of the condectr in driving the omnibus as Be-was- ook aera de ick In tis ease ihe driver aso Gino authorise or permit the conduetos fo Sve re yea apparel he: was fo neqigentin-leving the vehicle in hares of te aa ee iyo: heefoe, be sid ta the driver ws negligent in conductor diving the cofducter. vied the conductor, te act of iving the vehicle was ouside His sso of ens a was clearly act whi he- was ot aura t_rtfonn ant $0-Hs fegligence could not make te master able, Ricketts vis. Thomas Tilling Ltd. (1915): Boat the London General Onoius Case, 6 the Thomas Tiling Lid. Case. in which the mente was held abe, the Tats were tht, the conduetr of anor dros he hi te ermision of the driver who es siting Desde him for de parpose of unin omni i neoion forthe next jourey, and ital process by his neplgence th Vanes toa at naverent and injured a person. ito be notiod in this ese thatthe mates arene fae negligence of te driver wnse wrongful at in permiing he corductor to Urivethc vehicle was an at for which master was held Table. Seis when the driver of tick, while on tasters business, le the pak he engine running in charge othe later, and went t nearby sap foe Pinging cack 28 6 coe Tupnened while the cleaner was on he sels, the maser and he insurance come ae rable + Skandia Insurance Co, Lid, v/s. Koklaben Chandravadan (1987) 2 SCC 654 ATR 1987 SC 1184. ‘Questions have very ofen boon rnc as to wher a servant while going to dea of Woe aeesrning ere from, acts inthe course of emplayment, Four general principles hasnt © aera were faulted by the House of Lor in Smith is Stages $989 AER 833 "They ate as follows: Treva a (vjoyee Waveling from his ordinary residence 10 his cegular place of work he means of wunsport may be, and even i itis provided by the employer is aaa and iy nt acting i te course of his employment; But, ie it ob ged by his 21 Author = Prof. Prabash K, Mokal hecmplover's transport, he will normally, in the absence of an fxpress condition w the contrary, be regarded as acting inthe course of employ mat 4) Traveling in the employer's time berweon workplaces or in the course ofa peripatetic ‘occupation, whether accompanied by goods oF tools or simply inorler to teach a sucesssion of iorkplaces (a an inspector of gas meters might do}, will be in the course of employment. fil) deviation fgom or interuption of jourmey under (ules itis merely incidental tothe journey) will, fo ‘ool the course of in-the course of empla ime be jv). Retum jourmeys ae toe trated on the same footing as outward journeys. general, @ servant in an emergency has an implied authority to protect his master's propery. In Poland vs, John Parr & Sons 1927, a carter who had handed over his wagon and twas going home to his dinner, suck a boy whom he suspected wrongly but on reasonable ‘ound, of tealng his guste’ property. "The master was held lable forthe consequem the principle that a servant has implied authority atleast in emergency to protect his master's propery, Prohibited act done by the servant (Effect of prohibition): IRis not always the lw that, whenever a servant does an at which his employer has prohibited him from doin, the act so done falls ouside the course of employment Protibitions fall under two categories 1) those which limit the scope or sphere or employment and fH) those which merely affect or restr! the mode of doing the at for which th employed. IF’ servant violates a prohibition of the first category, his act will be ouside the course of employment and the master will not be vicariously lable; bu, if the violation By the servant is ‘only of & prohibition of the second category, the servant act will b ‘employment making the master lable Limpus v/s. London General Omnibus Co. (1862) : In this cate, the drivers of omnibus belonging to London General Onmnibus Co. were furnished with printed instuctions saying that “they must not on any aegount race with, or obstruct another omnibus”, nevertheless, the driver of one of the defendant’ (employer's) fomaibus did obstruct a rival omnibus and caused an accident in whjch the plaintf?s horses were injured. The defendants were held liable, because, what his driver td was merely an authorized to do, namely, to promote the defendants (his employer's) business. in the course of Dishonest and Criminal Act ‘A master is not liable for a dishonest or eriminal set of his servant where the servant Imerely takes the opportunity afforded by his service to commit the wrongful act = Moris v/s. Marin & Sons Lud, 1965. For example, if a window cleaner steals an article from the room here he is doing the window cleaning work, his employer is not lable. Similatly, when « Servant assaults another, whom he meet in the course of his work, ou of personal vendetta, and the asault as no relation tothe masters work, the master snot isle, In State Bank of India vs. Shyama Devi AUR 1978 S.C. 1263 the plaintiff who had a savings Bank account with the Bank, handed over w cheque and cash to an employce of the 2, thor - Prof. Prakash K. Mokal ‘Bank who was a neighbour and fiend ofthe plains husband, with alter of instructions and passbook for being credited to her account. The employee misappropriated the amount and. made false entries in the passbook. The employee was notin charge of the Savings Bank inter and the cheque and cash were not arsed ever tothe counter-ckrk concemed, On these facts, the Supreme Court held tat, the Bank was not liable fr the fraud ofthe employee. The ‘employee concemed here, had no ctual or apparent authority to accept on behalf of the Bank a cheque or a cash fr being deposited in Savings Bank Accounts and the money was not received by him in the normal course of business of the Bank. Indeed, the employee wat constituted agent of the plaintiff where she sent the cheque and the cash with letter of instructions through him for being credited to her Savings Bank Account, The employee's aud was, therefore, not in the course of his employment and all that could be said was that, "whe fact of his being an employee of the Bank” gave him an opportunity to commit the fraud, Merely for this, Bank ‘cannot beheld lable, Doctrine of Common Employment ‘The doctrine of Common Employment came to be recognised for the first time in Priestly v/s. Fowler in te year 1837, which aid down that a master isnot lile to a servant who was injured by the wrongful act of a fellow servant who was at the ime in common employment with the master, Employer's Lisilty Act, 1880 changed the concept of ‘Gommon employment’ by providing many exceptions to the doctrine of ‘commen employment’. Under those exceptions, master was held liable, In India, Employers’ Liability Act, 1938 was passed and the dactne was applied ony to the cases where it was not abrogated under thie Act: Governor General in Council vs. Constance Zena Wells AIR 1950 PC. But the doctrine was not abolished completly i. master was no held iable in some Then came Employer's Liability (Amendment) Act, 19S1, which introduced new Section 3A. Under which the doctrine of ‘common employment” catwiol be applied in India and. a master is liable to a servant who was injured by the wrongful act of a fellow servant in the course of employment or who was atthe ime in common employment with the master ©) Master's right 10 recover damages from servant (servant's ability to master) : The law implies a term in a coniract between employer and employee thatthe employce will exercise reasonable cae in performance of his work and, theiefore, ifthe master is obliged to pay damages to a third party for wrongs committed by the servant, he can recover that amount fom the servant in a suit for damages for breach of that implied term: Lister v/s. Ramford Ice ‘and Cold Storage Co. Ld. 1957 (decision given by House of Lords in England) In India, in Lucknow Development Authority ws. M.C. Gupta, AIR 1994 S.C. 787, it was held that, when an officer of the Government of a public authori, acts maliciously and ‘oppressive, causing harassment and agony to the plaintiff, the Goverment or a public authority whois made liable for damages, must recover that amount of damages from the officer ‘who has committed tort othe plaintiff 11) Employer (or, owner) and Independent Contractor : ) ‘Independent Contractor’ : ___23,____Author= Prof, Prokash Mokal. ‘An independent contracor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attsins that result. Thus, the independent contractor i not under the order or control ofthe employer. Independent contractor uses his own direction, method or manner of work and does the asked work for bis emp oyer. Independent contractor, in tur, employees workers to do that Work, Therefore, the employer isnot liable forthe wrongs committed by the workers engaged by the independent ‘ontractor. Only independent contractor (in his capacity as a master) can be he liable forthe torts commited by his (independent contractors) servants or workers, The rule is “he who controls the work, is answerable for the worker and not the remoter employer who does not control. Building contractor is example of independent contractor. Now, the general rule is tha, forthe acts and omissions of ai independent contractor, (except those actually authorized) his employer isnot liable forthe wrongs of servants engax by the contractor to do the work. He who controls the work, is answerable fr the workana; the remoter employer, who dbes not contol, is not answerable. (e-g. Owner asa remoter employer ‘who employs building contractor, and contractor in turn employs Workers. Therefore, owner is not ansterable to the wrongs committed by the workers ofthe contactor ‘Though, asa general rule the employer is not liable for tots ofthe servants or workers of the independent contractor, there are certain exceptions to this rule. “Ths, the rule would not apy i) Where the emplover retains his control over the contractor and personally interferes with the work of independent contactor and makes himself a party to the act which occasions the

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