I YEAR BBA LLB (HONS.

) – SEMESTER -II (2022-23)

1ST -INTERNAL ASSESSMENT

SUBJECT: LAW OF TORTS

TOPIC: CASE STUDY ANALYSIS

NAME: ANUJ MAHESHWARI

DIVISION: C

PRN: 22010126231

COURSE: BBA LL.B. (H)

BATCH: 2022-2027
(WORD COUNT EXCLUDING COVER PAGE, INDEX, HEADINGS, FOOTNOTES, AND REFERENCES: 1921 )
PROBLEM 1

A) CLIENT : DOCTOR

Before we look into this case study it is important for us to understand the tort that is in
picture. In this case study the parties involved are a patient and a doctor and the tort that has
occurred is the tort of battery. Battery has been defined by the case of Collins V. Wilcock1,
1984 as “intentional physical contact which was not generally accepted in the ordinary
conduct of daily life.” This means that for a person to be liable for battery he/she must make
physical contact which is not accepted in the ordinary course of life. Another thing that needs
to be understood is that as mentioned in the case of Cole v. Turner2, 1704 physical contact
can be considered as battery only if the slightest contact has been done under anger.

For a person to be acquitted of battery, there are a certain number of essentials that need to be
fulfilled. These essentials are: intention, direct or indirect use of force, physical contact,
without lawful justifications. If all these essentials are fulfilled then only can a party be
liable for battery. In the case study mentioned the client would be liable for battery if the
patient had explicitly denied treatment in ways that would hurt his religious sentiments but in
this case as the locket or bracelet was lost and there was no way that the doctor could come
to know that the patient is a christian and has such beliefs. If the patient was wearing the
bracelet and the doctor still did such a treatment then not only would he be liable for assault
and battery but also for negligence as in the case of Malette v. Shulman3, 1991. It was in the
case of Schloendorff v. Society of New York Hospital 4, 1914 that the principle of implied
consent was established. Implied consent means that a person may give consent to another
by either doing an act or abstaining from doing an act and for a doctor to perform a
procedure on a patient, the doctor is required to get consent of the patient and in this case the
patient had given implied consent. But there is an exception to this case which indicates that
if a patient is unable to give consent as he/she is unconscious then it is the doctor’s duty to
perform procedures that save the patients life. This was again established in the case of

1
Collins v. Wilcock, [1984] 3 All ER 374
2
Cole vs. Turner, [1704] 6 mod. 149
3
Mallette v. Shulman, 1991(2) Med. LR 162
4
Schloendorff v. Society of New York Hospital, 1914 105 N.E. 92, 211 N.Y. 125
Arvind Kumar v. New India Assurance Company Ltd & Ors 5, 2010 by the Allahabad High
Court that if a patient is unconscious and unable to give consent and is in urgent need of
medical treatment the doctor must do the treatment and in this case implied consent is same
as consent.

Therefore in this case as the patient was not in the condition to give consent and as there
were no indications of the patients religious beliefs the doctor was under his duty to
perform the operation in order to save the patient’s life and therefore the doctor is not liable
for battery.

B) CLIENT : JOE

The tort in this case is the tort of ‘assault’. Assault has been defined under Section 351 of the
Indian Penal Code6 as : Whoever makes any gesture, or any preparation intending or knowing
it to be likely that such gesture or preparation will cause any person present to apprehend that
he who makes that gesture or preparation is about to use criminal force to that person, is said
to commit an assault. This definition clearly states that physical damage is not a necessity for
someone to prove assault.

Just like battery, assault also has certain essential elements that need to be fulfilled for assault
to be proven. These essentials are: attempt or threat to cause hurt, apparent present
ability, intention, and reasonable apprehension. The facts of the case given are that a stick
was thrown at Joe by Marien who are rival athletes but Joe only finds about all this later after
a teammate of his informs him about this event. Now Joe sues Marien for assault. And an
important detail of this case study is the fact that it takes place in a jurisdiction that defines
assault as intentionally placing the victim in fear of immediate bodily harm. In this case
all the essentials are being satisfied other than one, immediate bodily harm. There is intention
as Marien wanted to cause bodily harm to Joe, there was intention as well but as at the of
filing a compliant or finding out that there was a chance of bodily harm it had been too late,
as the jurisdiction defines clearly that assault may be proven when there is immediate bodily
danger, Marien would not be liable for assault. Had it been that Joe would have found out at
that very moment and filed a case for assault, Marien had been liable for assault.

5
Arvind Kumar v. New India Assurance Company Ltd & Ors, 2010 SCC OnLine All 2197
6
Indian Penal Code 1834, S 351
For Marien to be not proven guilty of assault the main defence would be the fact that the
essentials for assault are not being met. As provided by the jurisdiction, there needs to be
immediate bodily harm and in this case there is no immediate bodily harm. Another
essential not being met is reasonable apprehension. As Joe did not have the knowledge of
such an act taking place he did not have the fear in his mind to get any bodily harm and
therefore this is another essential not being met. As per the definition of this jurisdiction the
victim needs to be placed in fear for harm and in this case as there was no fear in the mind
of Joe, it cannot be proven that Marien is liable for assault.

PROBLEM 2

In this particular case, a meeting being held by Steven of Parish Councilors goes out of hand
when Dave, a member of the meeting starts shouting at Steven and a chain of events that are
of concern take place. The wrongful events start with Dave shouting at Steven leading to a
case of assault and battery and later when another member of the meeting Brian pursuits to
throw a pen at Dave, leading him to being detained by the other members of the meeting for
5 days.

The case needs to be looked at from the perspective of different members of the meeting. If
we start with the perspective of Dave. Dave is liable for assault as at first he started shouting
threats at Steven which can count as assault and even after this he got up and made a move
against Steven when he was stopped by all the other members of the meeting. This would
amount to assault on the side of Dave as this act fulfills all the essentials of the tort of assault.
The essentials of assault as mentioned under section 351 of Indian Penal Code7 are that there
should be that there should be an act or gesture made to harm the other person, there should
be intention to harm the other, and there should be reasonable apprehension. In this case all
the three essentials are being fulfilled as there is an act done by Dave when he shouts
threats at Steven, there is intention when he gets up in order to cause bodily harm to Steven
and there is reasonable apprehension in the mind of Steven as Dave is in distance to harm
and has the ability to cause harm to Steven.

The next position to look at is Steven. Steven being the chair of the meeting had the
responsibility to make sure that nothing wrong happens at the meeting at there is decorum in
the meeting. However this decorum is broken when Dave gets up and starts shouting threats
7
Supra Note 6
to Steven. After this despite being in the fear of bodily harm, Steven does the right thing and
takes a vote to remove Dave from the meeting. In this case, Steven is likely to get
compensation from Dave if he chooses to pursue a case against Dave. Steven would be
awarded damages from Dave as mentioned in the case R v. Constanza 19978, verbal threats
would also constitute assault till the person committing assault has the ability to turn the
assault into battery. Steven may choose to proceed with civil or criminal proceedings against
Dave. This is similar to what had happened in the case of Stephens v. Myers, 18309.

While the other members of the meeting were stopping Dave from physically damaging
Brian took a pen and threw at Dave which led to him being hit by the pen. This would mean
that Brian committed the tort of assault and battery. He is liable for assault as he created
an apprehension of damage in Dave’s mind before he threw the pen at Dave and then when
he finally threw the pen and hit Dave, he committed the tort of battery. He is liable for battery
as there is physical contact and that is the only essential that needs to be proved in order for
the tort of assault being changed to battery and then allowing the harmed in this case Dave to
sue for battery and assault. Brian would also be liable for harassment as he had been
sending broken pens to Steven ever since he got out of the shed and will have to pay
compensation to Steven for this harassment.

Looking at this case from the perspective of the other members of the meeting. All those who
were involved in locking up Brian for 5 days in a shed will be liable for false imprisonment
as this was a clear case of false imprisonment as defined in Collins v. Wilcock, 198410 as
‘unlawful imposition of restraint on another’s freedom of movement.’ Wrongful restraint and
wrongful confinement has been defined under section 33911 and 34012 of the Indian Penal
Code. This act fulfills all the essentials of false imprisonment as there was a restraint of
personal liberty as defined under White v. WP Brown, 198313 ; the restraint was total as
Brian did not have a single exit and this has been defined under the case Bird v. Jones, 184514

8
R v. Cotzana,1997, [1997] 2 Cr App R. 492.
9
Stephens v. Myers, [1830] EWHC J37; [1830] 4 Car & P 350.
10
Supra Note 1

11
Indian Penal Code 1834, S 339
12
Indian Penal Code 1834, S 340
13
White v. WP Brown, (1983) CLY 972
14
Bird v. Jones, [1845] 7 QB 742
and lastly it was without lawful justification as locking him up for 5 days was excessive and
was a violation of his fundamental rights as mentioned in the case of Bhim Singh v. State
of J&K, 198515. Therefore who all were involved in locking up Brian for 5 days in the shed
will be liable for false imprisonment and will have to pay compensation to Brian.

All in all if we look at what each party is liable for and what each party would gain from this
line of events: Steven would be the one gaining the most as not only will he get
compensation from Dave for assault but also from Brian for harassing him by sending
all those broken pens. Dave would be liable for assault and will have to pay an amount to
Steven but he would also gain compenation from Brian for assault and battery. Brian
would have to pay compensation to Steven for harassing him and will also have to pay
Dave for assaulting him and causing battery. However, he will also be compensated by
the other members of the meeting for falsely imprisoning him for 5 days. The other members
of the board will have to pay compensation to Brian for imprisoning him for 5 days in a
shed and as per receiving anything, they will not be entitled to any compensation.

15
Bhim Singh v. State of J&K, (1985) 4 SCC 677