MODULE II

LAW OF TORTS

RANIYAL NIYADA
 SYLLABUS
• GENERAL DEFENCE

• VICARIOUS LIABILITY

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 Introduction
Once the Act of Torts is committed, there are
various defenses that a tortfeasor can claim. In
this module we examine the general defenses
that can be claimed.

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GENERAL DEFENCES
 GENERAL DEFENCE
• Volenti non fit injuria
• Plaintiff the wrongdoer
• Act of God
• Inevitable accident
• Private Defence
• Mistake
• Necessity
• Statutory Authority
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 Volenti non fit injuria
• Latin for “to a willing person, it is not a wrong.
• voluntary assumption of risk
• a person consents to the infliction of harm upon himself, he has
no remedy
• Harm suffered voluntarily- not legal injury- not actionable
• Eg - Doctors performing surgery, football players, spectator of
car race shows etc

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 Case Laws
• Ilott v. Wilkes
• Trespasser into a property with spring guns
• had knowledge of same
• cannot maintain a action
• Hall v. Brooklyn Racing Club:
• Plaintiff- a spectator at car racing
• race cars - collided - one of them to fling into the seating area
-injuring the plaintiff.
• plaintiff - impliedly consented to such a risk when he came to
attend the race- no damages
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 Conditions
• Knowledge of the risk
• Consent
• Expressed
• Implied
• It must not be obtained fraudulently (R. v. Williams).
• harm caused must not be beyond what is consented to.
• Lakshmi Raj v. Malar Hospital Pvt. Ltd
• plaintiff - consented to have her appendix removed -surgeons also
removed uterus - went beyond what was consented - held liable
for damages
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 Scienti non fit injuria
• Mere knowledge does not imply consent
• Knowledge only part of the element.
• Smith v. Baker
• plaintiff employed to cut rock.
• One of the cranes moving the cut rocks to the other side was
hovering over the plaintiff’s head.
• one of the rocks fell and injured the plaintiff.
• did not mean consent to get hit and injured by rocks

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 Exception
1. Rescue Cases:
• plaintiff voluntarily agrees to the risk of damage while
saving/rescuing somebody from an imminent danger created
by the wrongful act of the defendant.
• Haynes v. Harwood:
• Uncontrolled carriage was coming towards children
playing on the street.
• Suffered serious harm
• action against the owner of the horses, the defendant was
held liable for damages

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 Exception
• The Act authorized is itself unlawful
• If voluntary consent is given for an act that is not allowed
under the law, the actor will be liable for damages even if the
consent was there. In this case, the defence of Volenti non fit
injuria will not be applicable.
• Negligence

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 Plaintiff the wrongdoer
• Act done by the plaintiff- illegal/wrong
• ex turpi causa non oritur action- no action arises from an
immoral cause
• not entitled to recover the damages in case he suffers an injury
• acts as a complete bar on recovery
• Bird v. Holbrook:
• a person trespassing on the defendant’s land and getting
injured by an array of spring guns set by the defendant
(without notice or warning) would not hinder him from
claiming damages
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 ACT OF GOD
• Also called Vis Major or Force Majeure
• Due to working of natural forces.
• Natural Calamities etc
• Conditions:
• Circumstances which no human foresight cannot provide
against
• Human not bound to recognize the possibility

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 Essential Elements
1.There must be working of natural forces
2.The occurrence must be extraordinary and not one which could
be anticipated and reasonably guarded against.
• Nichols v. Marshland:
➢Due to heavy rain the artificial lakes on D’s land overflowed and
burst the bridges belonging to P.
➢Held act of god

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 Case Law
• Ramalinga Nadar v. Narayana Reddiar:
➢Plaintiff booked goods with defendant for transportation
➢Goods looted by mob
➢destructive acts of an unruly mob cannot be considered an
Act of God
➢Only reason- natural forces
• Kallulal v. Hemchand:
➢Building collapses due to natural amount of rain- not Act of
god defence.
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 INEVITABLE ACCIDENTS
• Accident - unexpected injury
• could not have been foreseen and avoided- with ordinary care,
skill and caution
• despite of reasonable care on the part of the defender- inevitable
accident
• neither intended to injure the plaintiff nor could he avoid the
injury by taking reasonable care.
• event is unforeseeable and consequences unavoidable in spite of
reasonable precautions
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 Conditions
i. The defendant should have done an act
ii.The act of the defendant should have resulted in injury to the
plaintiff.
iii.The defendant should not have expected such injury.
iv.The defendant could not have foreseen such injury

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 Case Laws
• S. Vedantacharya v. Highways Department of South Arcot
➢Defence not applicable- if the event can be anticipated and
guarded against and the consequences can be avoided by
reasonable precautions.
• Stanley v. Powell:
➢plaintiff - employed to carry cartridge for a shooting party.
➢A member of the party fired at a distance but the bullet, after
hitting a tree, rebounded into the plaintiff’s eye.
➢held that the defendant was not liable inevitable accident.
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 Case Laws
• Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha:
• Accidental fire due to short- circuit in the premises occupied by
defendant.
• Held – inevitable accidents
• Nitro-Glycerine Case:
• Defendant company- carriers of a package.
• In transit – found the contents leaking- carried to defendants
office
• The package once opened- exploded.
• P- owner of the building- sued for damages caused to building
• Held- inevitable accidents.

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 Recall??!!
✓ Volenti non fit injuria

✓ Plaintiff the wrongdoer

✓ Act of God

✓ Inevitable accidents

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 Private Defence
• Every person has the right to defend his own person/ property/
possession
• Can extend to spouses., parents, children, friend etc
• Can use equal force- that degree of force should justify the force
excreted.
• Should not be out of proportion
• Reasonable believed to be necessary- must be proved
• Even if third person is hurt- accident

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 CONDITION
1. There is an imminent threat to personal safety or property.
2. The use of such force is absolutely necessary to repel the
invasion/attack.
3. Danger must be apparent and not assumed/ mere anticipated
4. The force used is not used out of proportion to the apparent
urgency of the occasion.

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 CaseLaws
• Curswell v. Sirl:
• D was passing plaintiff’s house
• P’s dog ran out and bit it
• D raised the gun- the dog ran away- D shot the running dog.
• Held- not justified
• Collins v. Renison:
• P gone up a ladder to nail a board on a wall outreaching
defendants garden and window
• D- feared burglary- shook the ladder- P injured
• Force- not justified.
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 MISTAKE

• Error in understanding or
MISTA
KE OF perception
LAW

MISTA
KE • Generally mistake is not
great defence - Cherubin
MISTAKE
OF FACT
Gregory v. the State of
Bihar
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 Case Laws
• Consolidate Co. v. Curtis:
• The defendant auctioneer had auctioned goods, believing they belonged to the
real owner, and then sent him the proceeds. In an action by the actual owner, the
auctioneer was held liable for the tort of conversion and his defence of ‘mistake
of fact’ had been rejected.

• Derry v. Peek
• Plaintiff brought suit after it bought shares in Defendant’s company, under the
belief that Defendant would have the right to use steam power, as opposed to other
companies, which would not
• honest belief in the truth of a statement was enough to prove the mistake of fact
as a good defence against tortuous liability.

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 Necessity
• Done under a necessity to prevent a greater evil/wrong
• Based on maxim:
➢Necessistas Non Habet Legem- Necessity knows no law
• Not applicable in case of negligence
• London Borough of Southwark v. Williams:
• Defined Necessity- urgent and transient situations of great and
imminent danger to life in which the law permits some encroachment
on private property.

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 • Necessity can be raised in three circumstances:
a) Public necessity:
• Salus populi suprema lex - Welfare of the people is the supreme
law.
• Eg- Private house pulled down for road widening, national security
b) Private necessity:
• Homeless people, pavement dwellers- Indian Law v. English Law
• Olga Tellis case- pavement dwellers not mere trespassers
c) Assistance given to a third person without his consent due to
necessity.
• Medical treatment etc

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 • Different from Private Defence- The plaintiff itself wrongdoer ; done for
the greater good.

• Different from inevitable accidents- harm is caused despite the best

efforts to avoid it

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 Case Laws
• Leight v. Gladstone:
• Forcibly feeding a hunger-strike protestor- to save life-
necessity
• Carter v. Thomas:
• D Entered P’S premises in good faith to extinguish a fire-
necessity – not liable for trespass

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 Statutory Authority
• Legislature authorizing an act- if unauthorized would be wrong-
then this defence applied
• Authorised by legislature.- either expressed or by necessary
implication
• Lesser private right must yield to the greater public good
• Not just to the act but all inevitable consequences of the act.
• If damage can be prevented by reasonable exercise of power-
action maintainable.

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 Case Laws
• Brand v. Hammer Smith Rail Co.:
• P’s land depreciated heavily due to fumes, noise and vibration caused by nearby
construction of railway lines
• P sued D
• Held- D acquired the rights to construct railway lines under Statutory Authority-
not actionable
• Metropolitan Asylum District v. Hill,
• A authorized to construct a hospital under statutory authoriy – in a residential area
• Proper measures were not taken to avoid contamination of infection
• P sued D for nuisance .
• The operation of the hospital was ceased- authorized to construct with reasonable
care and caution

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 Judicial or Quasi Judicial Acts
• Acts done or words spoken by a judge – while discharging his
judicial duties- not actionable
• Only when he is functioning judicial acts
• To make sure that judges will freely give their judgements
• Judicial Officers Protection Act, 1850
• Condition:
• He must honestly believe that he had jurisdiction to do so

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 Case Laws
• Sailajanand Pandey v. Suresh Chandra Gupta:
• Magistrate ordered the arrest of P
• P was outside his jurisdiction
• P argued he did it with malafide and illegally
• Held- Not entitled for protection.

✓Uberrima fides- Utmost good faith

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 PARENTAL OR QUASI PARENTAL AUTHORITY

• Parents and people in parental positions (loco parentis)- many

inflict punishments for corrective purposes.
• Must be reasonable and moderate
• Fitzgerald v. North cotel
• Includes a teacher.
• Excessive punishment- liable for assault, batter, false
imprisonment etc.

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 Case Laws
• R v. Newport
• school rules prohibited smoking, both in the school and in the public
• the school master- caning a student whom he had found smoking
cigarette in a public street.
• Held Justifiable

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 VICARIOUS
LIABILITY

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 Vicarious Liability
• A person is normally liable for only his own act.
• But in certain circumstances- a person is held liable for the wrong
committed by others
• Wrong doer himself is liable along with the other person
• Eg- Master liable for the act of the servant
• Build on Two Maxims:
1. Qui facit per alium facit per se- he who acts through another is
deemed in law as doing it himself
2. Respondent superior- Let the master answer

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 Basis and reasoning
• More promising source for recompense
• He set the balls rolling
• Control over the servant
• Benefited from his servant's act.
• Doctrine evolved for social convenience and rough justice.

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 Circumstances

By Ratification

By Relationship

By abetment

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 Ratification
• making valid of an act already done
• Omnis ratihabitio retrorahitur et mandato priori aequiparatur-
every ratification of an act relates back and thereupon becomes
equivalent to a previous request.
• It is an act of confirmation/ adoption
• Adoption of a transaction- by a person who was not bound by it
originally because it was entered into by an unauthorized agent.

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 Parties

Agent
Principal

Third
Party

Ratification
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 Conditions
i. The agent must appear to act on behalf of Principal
ii. The Principal must be in existence
iii. Principal must have full knowledge of the facts and nature of the act
iv. He must ratify the complete act
v. The principal must be competent to do so
vi. Illegal/ void acts cannot be ratified
vii. Ratification relates back

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 Relationship
Master &
Servant

Owner and
Guardian
Independent
and wards
Contractor

Relationship

Firm and Principal-

Partners Agent

Company
and its
directors

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 Master- Servant
• Servant- any person who is employed by another to do work for him-
Subject to control and direction of his employer- regarding the manner of
work.
• Master- person legally entitled to give orders and to have them obeyed
• Tells him what to do and how to do it.
• Power and direction by the master over the servant.
• A master is responsible for the torts of his servants- if its done during the
course of employment

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 ✓ Contract of Service-
Master more liable
than in contract for
service

Contract of
Service Contract for
Service

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 Contract of Service

1. Test of Control- Traditional View

• What kind of control is exerted.
• Gives direction as to what to do and controls the manner of
doing the act- Master Servant.
• Independent Contractor- What to be done and not the manner of
doing the act.

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 CaseLaw

• Short v. J & W Henderson Ltd- Lord Thankerton- four step test

1. Master’s Power of selection of his servants
2. Payment of wages or other remuneration
3. The master’s right to control the method of doing the work
4. Master’s right to suspend or dismiss the servant.

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 2. Modern View- Control test not exclusive
• Control test is not applicable to skilled and particular professionals
• Dharangadhara Chemical Works Ltd. v State of Saurashtra:
✓prima facie test - the existence of the right in the master to
supervise and control the execution of the work done by the servant
✓the nature of control may vary from business to business
✓it is not necessary that the employer should be proved to have
exercised control over the work of the employee
✓the test of control is not of universal application
✓there are many contracts in which the master could not control the
manner in which work was done.
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 • Montreal v. Montreal Locomotive Works Ltd
• Control itself is not exclusive
• 4 Step Test:
1. control;
2. ownership of the tools;
3. chance of profit;
4. risk of loss
✓Contract of service, - employed as a part of the business; and his work is
done as an integral part of the business
✓Contract for services- his work, although done for the business, is not
integrated into it but is only accessory to it

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 Course of employment
• Q: servant's wrongful act was merely a mode of performing the
authorized act or whether it was an act he was not employed to perform.
• Whether the wrongful act falls within the permissible limits of authorized
acts from the area of unauthorized acts.
• whether act has so deviated from the normal method of doing the
authorized act - that the wrongful act cannot be properly described as
merely a wrongful or unauthorized method of doing the authorized act?
• close connection test - whether the wrongful act of the servant was so
connected with the master's business that it will be just to impose
vicarious liability on the master

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 Case Laws
• Beard v. London General Omnibus Co
• the plaintiff was injured by the negligent driving of the conductor of
an omnibus,
• Conductor - at the end of a journey, on his own initiative, and in the
absence of the driver- took charge of the omnibus and drove it round
through some neighboring bye-streets
• with the intention of turning it round, to be ready for the next journey
• Held the owner of the bus is not responsible

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 • Ricketts v. Thomas Tilling Ltd.,
• conductor of an omnibus drove the omnibus with permission of the
driver who was sitting beside him for the purpose of turning it in the
right direction for the next journey
• in that process by his negligence the vehicle mounted a foot pavement
and injured a person.
• Master held liable.
• Master's liability was for the negligence of the driver whose wrongful
act in permitting the conductor to drive the vehicle was an
unauthorized mode of performing the authorized act of driving the
vehicle for the master's business
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 • Smith v. Stages
• Developed certain question about course of employment.
1. An employee travelling from his ordinary residence to his regular
place of work, whatever the means of transport and even if it is provided
by the employer, is not on duty and is not acting in the course of his
employment, but if he is obliged by his contract of service to use the
employer's transport, he will normally, in the absence of an express
condition to the contrary, be regarded as acting in the course of his
employment while doing so.
2. Travelling in the employer's time between workplaces (one of which
may be the regular workplace) or in the course of a peripatetic occupation,
whether accompanied by goods or tools or simply in order to reach a
succession of workplaces (as an inspector of gas meters might do), will
be in the course of employment.

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 3. Receipt of wages (though not receipt of a travelling allowance) will indicate that
the employee is travelling in the employer's time and for his benefit and is
acting in the course of his employment and in such a case the fact that the
employee may have discretion as to the mode and time of travelling will not take
the journey out of the course of his employment.
4. An employee travelling in the employer's time from his ordinary residence to a
workplace other than his regular workplace or in the course of a peripatetic
occupation or to the scene of an emergency (such as fire, an accident or
mechanical breakdown of plant) will be acting in the course of employment.
5. A deviation from or interruption of a journey undertaken in the course of
employment (unless the deviation or interruption is merely incidental to the
journey) will for the time being (which may include an overnight interruption)
take the employee out of the course of employment.
6. Return journeys are to be treated on the same footing as outward journeys

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 • Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt
• the owner had entrusted his car to a driver for plying it as a taxi.
• The driver lent the taxi to the cleaner for taking it to the R.T.O.'s office
for driving test.
• The accident happened when the cleaner was driving while giving the
driving test.
• The driver was then not in the vehicle.
• at the time the accident happened, the car was not being used as a taxi
for the owner's business. - had no connection whatsoever with the
owner's business.
• The driver in lending the car to the cleaner for taking a driving test did
an act which he was not employed to perform and thus clearly acted
beyond the scope of his employment which was to drive the car as a
taxi.
• The owner held not liable

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 Lending a servant
• Master may lend his servant to a third party temporarily for some
particular work.
• Two masters- General employer and Particular employer
• The general employer is normally liable – his liability can only be
avoided if he can prove that transfer was to make his servant of the hirer
for the occasion
• Test- ‘Whether the servant is transferred or only the use and benefit of his
work?
1. Who pays, 2. who can dismiss, 3. length of alternative service,

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 Independent Contractor
• Undertaken to produce a given result without being in any way controlled
as to the method by which he attains the result
• Not under the order or control of the person for whom he does it.
• Use his own discretion
• No vicarious liability
• Unless the act itself is wrong; liability imposed by statute- Workmen’s
compensation act.

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 Company and Directors
• Company liable for the torts committed by the employee in the course of
employment

• Directors – personally liable for the torts committed by themselves – even

if done for the benefit of the company.

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 Firm and Partner
• Firm is liable for the torts committed by a partner in the ordinary course
of the business of the firm.

• Relationship similar to Principal- agent.

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 Guardian and Wards
• Guardian not personally liable for torts committed by Minor

• Guardian can sue for personal injury to minors- on their behalf

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 Liability By Abetment
• Abetment- instigating or aiding the doing of a thing

• Abettor of tort is equally liable- Joint Tortfeasor

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Thank you

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