1.“Every injury imports damage but every damage is not injury” Discuss the statement in the light of decided cases. Introduction: Damnum Sine Injuria is a legal maxim that refers to ‘Damage without Injury’ or damage that does not infringe any legal right vested with the plaintiff. Since no legal right has been infringed, no action is taken in cases of Damnum Sine Injuria. The general principle on which this maxim is based is that if one exercises his common or ordinary rights within a reasonable limit and without infringing upon the other's legal right; such practice does not give rise to an action in favour of that other person. The loss can be in any form either in the form of any substantial loss or loss in respect of money, comfort, health etc. It is an implicit principle in law that there is no remedy for any moral wrong, unless a legal right has been violated. The court shall not award any damages to the plaintiff, even if the act or omission committed by the defendant is wilful. The court presumes in cases where the legal right has been infringed that, damages have to be awarded, but in cases where no legal right has been infringed, the maxim Damnum sine Injuria applies & no remedies are available for the same. So, it can be rightly said that an act which is lawfully or legally done, without negligence, & in the exercise of a legal right, such damages as comes to another thereby is damage without injury Meaning of Injuria Sine Damnum: ~ Injuria sine damnum means “Injury without damage” or it means an infringement of an absolute private right without any actual loss or damage. It is a Latin term, where ‘Injuri refers to injury ‘Sine’ refers to without and ‘Damnum refers to a property or any physical loss, therefore the term refers to ‘injury suffered without actual loss’. Injuria Sine Damnum refers to the damage suffered by the plaintiff due to the violation of legal rights done by the other, even though there is no harm or loss or injury being suffered by the plaintiff. Hence in this, the plaintiff has to only prove that his/her legal rights have been violated, as it is actionable per se. Everyone has an absolute right to his own property, to the defence of his person, and his liberty and the infringement of this right is itself actionable. ‘The person against whom a legal right has been violated has a cause of actionsuch that the breach of any legal right also causes wilful action. The law also provides liberty that if any person is in danger of breach of a legal right without the injury being completed, the person whose right has been threatened may sue under the provisions of the Specific Relief Act under declaration and injunction. For example: ~ If a person is wrongfully detained against his will, he shall claim substantial damages for wrongful confinement, even if there is no physical damage on the detention. led case: Gloucester Grammar School (1410) Facts of the Case: A schoolmaster founded the plaintiff's rival school, and since competition caused the plaintiff to reduce his fees from 40 pence to 12 pence per quarter. Thus, claimed compensation for the damage caused to the respondent. It held that there was no remedy for the damages caused to the plaintiff, as the act, despite being morally wrong, did not infringe any legal right of the plaintiff. Judgement of the Case: - The court considers in cases where a legal right has been violated those damages are to be awarded, but in cases where no legal right has been violated, the maxim damnum sine injuria applies and no remedy is available for it. So, it can rightly be said that an act which is done legally or legally, without negligence, and in the exercise of a legal right, such a loss. which is caused to another, is damage without injury. Mayor & Co. of Bradford vs. Pickles (1895) Facts of the Case: — The Corporation of Bradford filed a suit against the defendant alleging that the defendant's act of digging a well in land owned by the defendant cut off the underground supply of water to the corporation’s well, causing them to not have an adequate supply. They have suffered monetary loss. Drainage of water for the people living under the jurisdiction of the Corporation. Judgement of the Case: ~ It is held that the defendant is not liable as he has not violated any of the legal rights of the plaintiff. Define tort and explain the essential elements of torts’ Definition:- The tort is completely based on the common law of England which is codified and to give also tort is a progressive law, so it is a very difficult certain definition of this word, but various eminent jurists defined the term tort in the following manner.ACCORDING TO SECTION 2(M) OF THE INDIAN LIMITATION ACT 1963, “Tort is a civil wrong which is responsible by an action for unliquidated and which is other than a mere breach of contract or breach of trust’ It’s According To Salmond A tort is a civil wrong for which the remedy is an action for unliquidated( not pre-fixed) damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation. It Is According To Fraser The tort is an infringement{violation) of right in Rem of private individual giving a right of compensation at the suit of the injured party. ESSENTIALS OF TORTS To constitute a tort-: There must be a wrongful act or omission committed by a person. The wrongful act or omission must result in legal remedy in the form of an action for damages. The wrongful act must be of such a nature to given rise to a legal remedy in the form of an action for damages. Wrongful Act Or Omission To determine liabilities in tort it must be proved that the act or omission done by the one person was a wrongful act. The act or omission must be legally wrongful. Violation of moral, social, and religious rights does not come under the category of torts. Legal Damages Another essential element is wrongful act or omission committed by one person must result in legal damages to the other i.e. Such act or omission resulted in a violation of legal remedy to another person. The following are the essential ingredients of the legal damages « There must be an infringement (violation) of a legal right (absolute or qualified).Such infringement of a legal right must have a presumption of damage in the eye of the law. Proof of actual damages suffered in case the right contravened is not an absolute but only a qualified right. Best illustrated by the following two maxim INJURIA SINE DAMNUM It denotes harm with no damages Which means that there has been a violation of legal rights but no damage has been done to the plaintiff. It basically indicates that the plaintiff suffers no loss or damage; only his legal rights are violated. Bhim Singh vs. Jammu & Kashmir State Bhim Singh (plaintiff) was a J&K Assembly MLA. While being on his way to. Assembly, the plaintiff was wrongfully detained by police by police. He was also not taken to the Magistrate. This act did not cause him physical or financial harm, but it probably violated his legal & fundamental rights. The State was found liable and ordered to pay compensation for damages. DAMNUM SINE INJURIA ~ It denotes damages without causing harm. In short, the plaintiff has suffered losses. They may be physical or pecuniary in nature, but no legal rights are violated. Gloucester Grammar School In this case, the defendant established a school in the same neighbourhood as the plaintiff's school. The defendant even lowered the school’s fees. This was not a tort case because the plaintiff suffered the only loss of money and none of his legal rights were breached. Ipjwiia Sine, 3.Explain the _maxim_ damnum sine injuria_ and damnum with the help of leading cases ? Introduction Maxims are supposed to be conventions and doctrines which are established as well as needed to take them following by the general people. Maxims seem to be very effective in a manner it comforts in learning them apparently but also absolutely. Maxims are also applied for understanding the appropriateexplanation relating to any argument. Law itself is very challenging maxims having words in the Latin language clarifies the meaning word by word but the maxims are supposed to be applied carefully and that is the only complication with respect to the maxims. Damnum Sine Injuria Latin maxim Damnum sine injuria signifies the meaning of the maxim term by term as the term Damnum is damage, sine is for without, and injuria is any injury of the personal lawful privileges. Damnum sine injuria means any damage which is caused apart from the harm as well as prejudice. This Latin maxim states that any damage caused without infringing the personal lawful privileges and there may be any action may not be considered as a mistake by law. Damages that are not prosecutable? Any damage which is caused relating to the equitable rivalry resulting in the benefit for the civilization. When any damage is caused by the honest faith for abbreviating the immense amount of the damage. Any damage which arose due to the statement intending to derogate by the honour through the direction. Illustration Any action conducted by A which leads to damage B without infringing the B’s personal legal privileges, therefore no action will be prosecutable. Case laws 1, Gloucester Grammar School Case, 1410 In the case stated above the plaintiff was the school. Somehow conflict took place leading to this teacher quit his teaching job and he instituted the brand new institution straight in front of the school he left, as the teacher was verypopular amongst the students many of the students took admission to the institution instituted by the teacher leaving their previous school. Plaintiff i.e school filed the suit against the respondent for the monetary damages caused because of him Court did find the respondents liable for the damages even the damages were monetary as there was not an infringement of the legal privilege. Mayor of Bradford v/s Pickles 1895 In this case, the corporate body of the Bradford providing to the people through its well, the defendant of the suit was the owner of the adjoining plot to the corporate body at which point the reservoir is situated. Defendant the owner of the adjoining plot was consenting to dispose of his plot regarding this we went to meet mayor of the Bradford but the discussion between them did not work. The defendant in his plot he bored the reservoir and stopped the supply of water from the corporate body's reservoir as that was the only way of supplying the water this leads to the damage as the supply of water was stopped. The corporate body prosecutes the defendant for antipathy. The court held that as the defendant bored the reservoir in his plot the antipathy is not the crime of tort moreover the defendant was not founded accountable as there was no infringement of the legal personal privileges. Mogul Steamship Co. McGregor Gow and Co In the case stated above several business associations commencing in steamships unitedly ganged by to drive the Plaintiff business company outward from the tea-bearing business company through unitedly lessening and tendering at the lessened cost. The court, in this case, held that several other business companies did not infringe on the personal lawful privilege of the plaintiff and were not liable. Injuria Sine Damnum This Latin maxim signifies term by term as injuria indicates an injury, sine indicates without and damnum indicates damage caused to the personnel or property which means that any injury caused to the person did not result inpersonal injury or damages. This maxim states that the plaintiff is bind to show that he undergo lawful damage, not simple damage. Mlustration D is meandering in A’s residence without explaining the reason for meandering which leads to the infringement of A’s lawful privilege moreover this Latin maxim is also useful Case Laws 1. Ashby v. White In this the plaintiff was the competent citizen who was willing to vote in the legislative voting, the respondent was the returning agent who stopped the plaintiff from voting during the voting. By the act of the respondent the there was no injury to the plaintiff but his lawful personal privilege was infringed on that ground defendant was accountable. 2. Bhim Singh vs. State of J. & K In this case, the complainant was the M.L.A of the legislative assembly. One day when he was going to attend the parliamentary Conference he was unlawfully jailed. Police also do not present him before the Magistrate within the prescribed time. Firstly he was unlawfully jailed moreover his fundamental privilege guaranteed under Article 21 of the Constitution was also infringed as a result respondent was accountable and was also made to pay compensation of Rs 50,000/- to the complainant. 4.What are the exceptions to non voluntinonfit injuria explain with cases? Introduction: The doctrine of Volenti Non-Fit Injuria is expressed by the Latin maxim, meaning thereby that where the plaintiff has consented to a wrongful act, he shall have no right to sue the defendant. Harm suffered voluntarily by the consent of the plaintiff is not actionable. This principle of law is generally known as Volenti non-fit injuria. For e.g.:— if'a man enters my house on my invitation then | cannot take an action for trespassing against him.Consent Must Be Free The defence of volenti non-fit injuria is available to the defendant only when he proves that the consent given by the plaintiff was free, that is without any fraud, compulsion or coercion. Consent May Be Express Or Implied Consent in oral or written form is.called express while consent by conduct is called implied. The defence of volenti non-fit injuria can also be available in the implied consent of the plaintiff. In Hall vs Brookland’s Auto Racing Clubs The plaintiff was a spectator in the defendant’s race club. During the race, there was a collision between two cars and as a result, one of the cars was thrown at spectators and injured the plaintiff. It was held that the defendant was not liable for the injury caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental to such sports. The Act Must Be Lawful The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and the method of doing it must also be lawful. EXCEPTION OF THE MAXIM VOLENTI NON-FIT DOES NOT APPLY 1. Where consent was given under compulsion (Smith vs Bekar 1891) 2. Where scienti is not volenti (Dann vs Hamilton 1939 1 K.B. 509) Rescue Cases This defence does not apply when the plaintiff endures an injury as a result of the defendant committing the act that he knows is likely to cause him harm but performs in order to save someone. In the case of Haynes v. Harwood (1935) The defendant’s servant brought two horses into the village near the police station and left them there to do other work. The horses became agitated by the children and broke free. When the plaintiff, a police officer, saw them in rage, he went to stop the horses and was injured in the process, so he filed alawsuit against the owner for harm. The court found that the defendant was held responsible since this defence of volenti non-fit injuria did not adhere in a rescue case. Mlegal Acts If consent has been given for an act that is not permitted by law, the liability cannot be avoided even if all of the necessary elements of this defence are met, therefore this defence will become ineffective in these kinds of cases. Negligence Of The Defendant In cases where the defendant has been guilty of negligence, the defence of volenti non-fit injuria does not apply. Thus, the defendant can use this defence to avoid liability only if he is not guilty of negligence. In Slater v. Clay Cros Co. Ltd. 1956 The applicant has been hit by a train passing through the tunnel of the respondent railroad company. The railroad company had instructed all of its train drivers to blow the whistle at the entry of the passageway and to slow the speed of the train, but still, the driver won't follow these directions & gross negligence drove the train inside of the tunnel & injured the plaintiff. The defendant raised this same defence of volenti non-fit injuria, however, the Court has ruled that this defence cannot be used since, while the appellant took the risk of walking inside of the passageway, this danger was heightened by the driver's negligence. As a result, when a plaintiff agrees to take that risk, there seems to be an assumption that the defendant was not guilty of negligence. Contributory Negligence & Volenti Non-Fit Injuria Contributory negligence & volenti non-fit injuria are both used by the defendant to avoid being sued, but they are not the same. In the case of contributory negligence, the appellant who has been injured is also at fault, together with the defendant, hence the number of damages that he could be granted is reduced in order to determine the degree of his negligence in the act that caused him injury.5.Trace the development of law of torts in England and Indi Introduction: The word Torts is derived from the Latin word ‘Tortum’ which means twisted/crooked/wrong. Tort in French corresponds to the English word wrong and the Roman expression delict. In a society when a person turns directly from the normal course of conduct to a person who injures or causes harm to another, he is considered to have committed a tort - a conduct that is twisted or crooked. A person who commits such devious acts is marked as a tortfeasor. It is different from breach of contract and trust. Tort is when the act of one party causes some harm to the other party due to negligence, carelessness on the part of another party. The one who sues is known as ‘plaintiff’ and the one who is sued is known as ‘defendant’. Origin of Tort Law in England. Prior to 1066, the French William the Conqueror of the Norman conquest of England, the legal system was somewhat disorganized, carried out on a more or less case-by-case basis. After 1066, to assimilate the village laws that had developed over two centuries, eminent judges were delegated to visit a given area. These judges, benefiting from this information, noted and applied the precepts they believed to be most impartial in their own court's findings. Over time, these cases became what are now called legal precedents when referenced often enough. The law of tort came to India via England. The law of tort came to India via England. After the Norman Conquest, French became the language spoken in the judiciary of England and thus many technical terms in English law originated from French and tort is one of them, The term ‘tort’ is based on the concept that there are certain rights for all in the society. The purpose of this atrocity law is to enforce rights and duties. The sessions during which these judges conducted trials were termed ‘assessments’ or ‘sittings’ in modern terms. The place from which a judge makes judgments and sentences is still called ‘bench’. Once these precedents were set, they were intended to apply equally to every member of society, from a lord to a servant, resulting in the term common law. Evolution Of Tort Law In India The evolution of tort law in India can be observed in three phases namely 1, Ancient era2. Medieval era 3. Modern era LANCIENT INDIA It was considered that the main and basic modes for the peaceful progression of the lives of the people were the State and the King. It was believed that a King can do no wrong. There are several written materials which also talk about the law and the legal foundation, liability and unsusceptibility of the King, concept of the origin of the State, responsibilities of the supreme towards its individuals and equitable remedy to the smitten people through Ordeal system etc. The most important among the various manuscripts are the Vedas, Smritis, Sutras, Arthasashtra, , and the writings of overseas travelers. They also tell us the liability of the State to counterbalance the victims, aggrieved by the King’s officials during ancient period. The concept of vicarious liability was formulated during Vedic period in India. The King had to protect the life and property of the people. If any wrong occurred affecting the people, the King was liable to make up them. Brihaspathi says where a servant authorized by his master does any wrongful act for the welfare of his master, the master shall be held liable for it. Thus the concept is established that when the servant's act is for the welfare of the master in the due course of his employment, the master is made liable. I. MEDIEVAL ERA It was analyzed that there was a very little progression of law of torts in India when compared with the law of crimes when the country was ruled by Islamic rulers such as Delhi Sultanate, Mughal empire. The reason behind this is their principle of eye for “an eye and tooth for a tooth.” MODERN ERA (during 18th and 19th Centuries! The British empire brought Common Law and Tort law came into India when the British Empire established three presidency courts at the efforts of Sir Henry Mane and Sir James Stephens. It tried to codify such laws 1886 through Sir Frederick Pollock in the form of Civil Wrongs Bill which was never passed. During British rule, Courts in India were administered by the Statutes of Parliament in the UK. The Indian enactments were supposed to act based on justice, equity and good conscience which are commonly known as the “General Principles of Law” when there was no specific law to solve the particular dispute in a suit. In the cases of damages for torts, courts preceded the English common law as it was in harmony with the general principles oflaw. They did not consider it when any of its rules were found unreasonable and unsuitable to Indian situations. Development of the Law of Torts in Indi ‘The Law of Torts is based on the principles of ‘Common Law’ which is primarily the English Law of Torts. The law of tort is selectively enforced in Indian courts if it suits the circumstances of the Indian society. In India, the term tort has existed since the pre-independence period. Tort did not have such an important beginning under Hindu law and Muslim law compared to English law. Most of the laws of tort in India is adopted from the English law of Torts. However, the Indian courts before making any application of the laws adopted from the English law of torts see whether it is compatible with Indian culture and circumstances. Using the English law in India has thus had a distinctive application. In India, the origin of torts is related to Charter of 1726. Under charter 1726 the English courts were established in three presidencies i.e. Bombay, Calcutta and Madras which were known as ‘Mayor courts’. These courts were working under ‘Common law’ full stop in India also the common law was made applicable but the directions were made to quotes that the common law is made applicable. In the application of common law, in the application of common law, the principles of equity, justice and good conscious were being followed. Law of torts was being considered an inseparable part of the common law. This was made applicable in India in this reference but due care was taken that it applied as per the conditions, customs and traditions of India. To deal with the malicious behavior of the people tort existed in Hindu and Muslim law but it can be said that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society In Naval Kishore vs. Rameshwar Nath And Ors. ( A.1.R. 1995 Allahabad 594) it was stated that the rules of law of torts of England should be made applicable as per the Indian atmosphere, that is, corresponding to traditions and Customs of it. \guish between Damnum sine injuria and _injuria sine damnum? Introduction:The law of torts is a collection of all the circumstances in which court gives a remedy by way of damages, for legally unjustified harm or injury done by one to another person. There are three elements which need to be proved before constituting a tort:- There must be an act or omission on the part of the defendant. . That act or omission should be in violation of a legal right vested in the plaintiff. . The wrongful act or omission thus done by the defendant is of such a nature to give rise to a legal remedy Both the maxims are divides fo three parts as follows: Damnum/Damno means substantial harm, loss or damage with respect, to the money, health, etc. Injuria means an infringement of a right given by the law to the plaintiff. + Sine means without. These 2 maxims fall under the category of qualified rights, & in the cases of qualified rights there is no presumption of damages and the violation of such rights is actionable only on the proof of damages. [S.No | Damnum Sine Injuria Injuria sine Damnum Damnum sine Injuria refers to the damages suffered by the plaintiff but no damage is being caused to the legal | rights as there is no violation of it | | | Injuria Sine damnum is the legal injury caused to the plaintiff without any damage to the physical injury. it is an infringement of a legal right | | where even if no loss has been suffered It is the losses suffered without the | by the plaintiff still creates an actionable infringement of any legal right hence creating no cause of action. | cause of action. No compensation in. the form of | Compensation in the form of damages is damages is awarded by the court. awarded by the court. | |This maxim is for the moral wrongs which have no action in the eyes of the law. The principle of this maxim is that a | person exercises in such a manner within This maxim is for the legal wrongs which are actionable if the person's legal right has been violated The principle of this maxim is that | whenever there is an invasion of a legal 5. reasonable limits which does not ground | right there creates a cause of action and action in tort merely because it causes | the person whose right is vested is damages to other people entitled to bring an action. In this, the plaintiff suffers a loss but has | !" this, the plaintiff suffers legal injury 6. doesn’t matter they have suffered any | suffered no legal injury. | loss on that account. | - | 3, Damages without injury are not This is actionable since there is a | actionable violation of a legal right. | | TORT CRIME A tort is a type of civil wrong which gives rise to civil proceedings . A.crime gives rise to criminal proceedings The goal of tort law is to defend a person’s rights. “The goal of criminal law is to keep society in order and to prevent crime. Law of tort is uncodified law. | Law of crime is codified law. i An individual's private rights are violated in tort. In crime, there is a violation of public rights and obligations, which has an impact on society. In tort, the injured person is known as the plaintiff, and he or she files a lawsuit against the wrongdoer. | Ina crime, the victim is the one who submits a police report.in torts, the plaintiff takes action by filing _| In the case of criminality, the state acts lawsuit. through police as spokespeople: In tort, the wrongdoer is responsible for In the case of a crime, the criminal faces compensation. punishment. | In tort, intention generally is not relevant. _| In crime, intention is always relevant. Tort amount of compensation is given to the | In crime the amount of fine imposed as | plaintiff. punishment is given to the state. ys 8.Write a note on Ubi jus ibi remedium. Introduction It is a Latin maxim which means that where there is a wrong, there is a remedy. If any wrong is committed then the law provides a remedy for that. The maxim can be phrased as that any person will not suffer a wrong without a remedy, it means that once it is proved that the right was breached then equity will provide a suitable remedy. This principle also underlines the fact that no wrong should be allowed to go without any compensation if it can be redressed by a court of law. The law presumes that there is no right without a remedy; and if all remedies are gone to enforce a right, the right in point of law ceases to exist. Where there is a right, there is a remedy Law of equity highlights the facts that if there is a breach of right then the right which is breached is incomplete without availability of proper remedy. The common laws were restricted to a limited number of remedies until the concept of law of equity was developed. In case of breach of rights, there are only a few writs which can be filed and if in any case the suit is not covered under the writs then the suit will be dismissed. There are so many rights available but no remedy is available in case of its breach. To remove this deficiency the concept of a court of chancery came into existence and have the jurisdiction to decide matters relating to equity and justice. Essentials of Ubi jus ibi remedium + The maxim ubi jus ibi remedium can be applied only where the right exists and that right should be recognized by the court of law;+ Awrongful act must have been done which violates the legal righ a person clearly. This maxim can be used only when sufficient relief has not been provided by the court to the person who sustained the injury. This maxim is applicable if any legal injury had been caused to any person, if no legal injury has been caused then the maxim damnum sine injuria will be used which means damage without any legal injury. The maxim ubi jus ibi remedium does not apply to moral and political wrong which are not actionable. This maxim is not applied to those cases in which proper remedy is given in case of breach of right under common law. If there is no legal damage which has been caused to any person then this maxim will not be applicable. No remedies are available in case of breach of marriage vows or personal commitment as these all are the promises made without consideration and are based on trust. This maxim is also not applicable in case of public nuisance unless and until a plaintiff shows that he suffered more injury than other members or peoples of the society. This maxim is not applicable where the plaintiff is negligent or there is negligence on the part of the plaintiff UNIT-I 10.Explain the Ii y of state for the torts committed by its servants. Introduction Vicarious Liability deals with cases where one person is liable for the acts of others. So ina case of vicarious liability both the person at whose behest the act is done as well as the person who does the act are liable. Thus, Employers are vicariously liable for the torts of their employees that are committed during the course of employment. The common examples of such liability are: 1. Liability of the principal for the tort of his agent.2. Liability of partners of each other's tort. 3. Liability of the master for the tort of his servant 4. Liability of the State or Liability of the Administration, Constituents of Vicarious Li vy So the constituents of vicarious liability of state are: 1, There must be a relationship of a certain kind. 2. The wrongful act must be related to the relationship in a certain way. 3. The wrong has been done within the course of employment. Vicarious Liability of the State The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extent the administration would be liable for the torts committed by its servants is 2 complex problem especially in developing countries with ever-widening State activities. The liability of the government in tort is governed by the principles of public law inherited from British Common law and the provisions of the Constitution. The whole idea of Vicariously liability of the State for the torts committed by its servants is based on three principles: Respondeat superior (let the principal be liable). Quifacit per alium facit per se (he who acts through another does it himself). Socialization of Compensation. Vicarious Liability of State in India The position of State liability as stated in Article 300 of the Constitution is as under: Clause (1) of Article 300 of the Constitution provides first, that the Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State; secondly, that the Government of India or the Government of a State may sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or be sued, “if this Constitution had not been enacted”, and thirdly, that the second mentioned rule shall be subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution. Consequently, one has to uncover the extent of liability of the East India Company in order to understandthe liability parameters of the administration today because the liability of the administration today is in direct succession to that of the East India Company. State Liability Under the English Common Law the maxim was “The King can do no wrong” and therefore, the King was not liable for the wrongs of his servants. But, in England, the position of the old Common Law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong actually authorized by it or committed by its servants, in the course of their employment. With the increasing functions of the State, the Crown Proceedings Act had been passed, and now the Crown is liable for a tort committed by its servants just like a private individual. Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which substantially decide the question of liability of the State. Sovereign Functions Sovereign functions are those actions of the state for which it is not answerable in any court of law. For instance, acts such as the defence of the country, raising and maintaining armed forces, making peace or war, foreign affairs, and acquiring and retaining territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to the jurisdiction of ordinary civil court. The State is immune from being sued, as the jurisdiction of the courts in such matters is impliedly barred. The distinction between sovereign and non-sovereign functions was considered at some length in N. Nagendra Rao v. State of AP. All the earlier Indian decisions on the subject were referred to. The court enunciated the following legal principles, in its judgment: Inthe modern sense, the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of the power and the manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it Pre-Constitution Judicial Decisions Relating to Vicarious Liability of State: Peninsular & Oriental Steam Navigation Company v Secretary.A consideration of the pre-Constitution cases of the Government's liability in tort begins with the judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. v. Secretary of State. The principle of this case holds that if any act was done in the exercise of sovereign functions, the East India Company or the State would not be liable. It drew quite a clear distinction between the sovereign and non-sovereign functions of the state for the purposes of vicarious liability of state. 11.Discuss the rule laid down in Rylands Vs . Fletcher case with exceptions . INTRODUCTION The principle of strict liability states that any person who holds dangerous substances in his or her premises shall be held liable if it escapes the premises and causes any harm. This concept came into being after the case of Rylands vs. Fletcher, 1868. As per the facts, F had a mill on his property, andto power it, he had constructed a reservoir on his land. Due to some accident, the water from the reservoir flooded the coal mine of R, his neighbor. Subsequently, R filed a suit against F. The court held that the reservoir was built on the risk of the defendant and during its operation, if any accident happens then the defendant would be held liable, even if he was not negligent in his actions, for the accident and escape of the material and the resultant damage caused. Thus, from the aforementioned case, we can point out some essentials of the case. Bringing and accumulating on the Defendant's land. Something likely to cause mischief if it escapes. Non-natural use of the land by Defendant. There is no specific definition of the Natural use of land. It can depend and vary from place to place and from time to time. + Escape of the material and foreseeable damage has taken place. + Irrespective of the defendant's degree of care. It is called NO-FAULT LIABILITY. ESSENTIALS OF STRICT LIABILITY 1. HAZARDOUS SUBSTANCE: 2. ESCAPE 3. NON-NATURAL USE OF LANDHAZARDOUS SUBSTANCE. ESCAPE: The liability only arises in the case where the defendant has a dangerous substance on the land. For enforcing Strict Liability, a thing can be hazardous ifit escapes can lead to mischief or damage Stuff like bombs, growing poisonous trees, etc. Another condition to be fulfilled is the escape of the substance from the defendant's premises. However, if the damage is caused but the substance is still within the premises, then there’s no strict liability. For instance, if a person has grown poisonous trees on his field, but the poisonous fruits of the trees fell on the neighbour's garden, eating which he died. Here, the defendant would be liable for the consequent losses/damages. Although, in another case, if the neighbour had entered the defendant's field for eating the poisonous apples. Then there would be no liability of the defendant. NON-NATURAL USE OF LAND: There is yet another prerequisite for the strict liability to be applicable. There should be a non-natural use of the defendant’s land. In the above-mentioned case of Rylands vs. Fletcher, the construction of the reservoir was a non-natural use of land, due to which the reservoir had burst and damaged Fletcher's mine. A water reservoir was considered to be a non-natural use of land ina coal mining area, but not in an arid state. For example, in the case of Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd, where the defendant put containers on his field which was not meant for this purpose and its sudden collapse resulted in damages to the property of the claimant, this was considered a non-natural use of land. These three requirements should be met at the same time in order to constitute strict liability. EXCEPTIONS TO THE CONCEPT OF STRICT LIABILITY There are certain exceptions to the concept of strict liability: . PLAINTIFF'S FAULT/ SENSITIVENESS . ACT OF GOD . ACT OF THIRD PARTY |. CONSENT OF THE PLAINTIFF5. STATUTORY AUTHORITY PLAINTIFF'S FAULT/ SENSITIVENESS If the plaintiff was at fault and thus damage is caused, then the defendant would not be held liable because the plaintiff had himself came in the contact with the hazardous thing. As in the case of EASTERN AND SOUTH AFRICAN TELEGRAPH CO. LTD. VS. CAPETOWN TRAMWAYS CO. it was held that the damage to the plaintiff's property was caused not by the defendant's negligence but by the unusual sensitiveness of the plaintiff's property. Hence, no liability arose on the part of the defendant in the present case. ACT OF GOD The term “act of God” can be interpreted as an occurrence that is beyond any control of human beings. Such happenings are entirely natural and take place without any intervention from the human agency. They are impossible to be avoided even after being prudent and cautious. The defendant would not be held liable for the damage caused if the hazardous thing escapes due to such unforeseeable and unavoidable natural events. ACT OF THIRD PARTY The concept also doesn’t apply when the damage is caused by the acts of athird party. Third-party means that the individual is neither the servant of the defendant nor has any contract with or influence over the work of the defendant. However, in cases where the act of a third party can be foreseen, it is assumed that the defendant should have taken care of it, otherwise he can be held accountable. In the case of BOX vs. JUBB, the court held that the defendant would not be held liable for the damage caused to the claimant's land, as the reservoir overflowed because a third party emptied his drain through the defendant's reservoir. CONSENT OF THE PLAINTIFF This exception is based on the principle of volenti non-fit injuria, which states that if a person puts himself in a circumstance where harm may result, being well aware of the danger, they may not be able to make a claim against the party in error.For instance, if A has @ bike with broken breaks and 8 is well aware of this fact but still rides it. In an accident, both suffer an injury but B can’t sue A for damages as he consented to the foreseeable dangers. STATUTORY AUTHORITY + According to it, a person would not be held liable for the damages which arise by the acts approved by the legislature. However, the statute itself may provide for compensation to the aggrieved party. In the case of GREEN vs. CHELSEA WATERWORKS CO. ,a principle belonging to the company, which was authorized by the parliament to lay the main, burst without negligence of the company and flooded the claimant’s premises; the company wasn’t held liable. 12.Explain the plaint fault and act of God as general defences with decided cases. Introduction The law of torts has been evolving throughout its existence. There are certain principles which are used to counter claims for compensation. These counterclaims or defences are used to evict those citizens from tortious liability who have been unfairly been implicated with wrong claims imposed on them. These defences have been formulated from time to time to keep up with the basis of imposition of tortious liability on a person. There are many defences to a tort, such as necessity, Inevitable accident, Plaintiff's wrongdoing, Volenti non fit injuria, etc. An Act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature, one which could not by any amount of care would have been foreseen, or if it has been foreseen, could not be avoided by any amount of care by any individual. An act of God is defined as a direct, sudden, insanely violent, natural, and irresistible act of nature, one which could not by any amount of care have been foreseen, or if it has been foreseen, could not be avoided by any amount of care by any individual. An act of God is one which has been there ever since the existence of our planet Earth, we have been witnessing natural calamities since the existence of mankind, these include, Earthquakes, floods, tornadoes, wildfires, etc. In such occurrences, lives are lost, properties aredestroyed or significantly damaged when the forces of the nature strike harshly and suddenly. Nature’s blows are severely dangerous and may come as a huge shock or surprise both to the victims of the disaster and even the accused individuals or tortfeasors. In many cases, the defendants are quick to claim the defence of an act of God as a defence to those cases. To afford the defence of vis major, there must be an immediate or proximate cause (Causa causans) and not just a cause had it not existed might never have led to the damage caused or complained of (causa sine quo non). Before an act of God may be granted as a defence the defendant has to prove himself to have done everything that a reasonable and a prudent person could do in such a scenario. Act of God serves as a good defence under the law of torts. It is also recognized as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v. Fletcher. The defence of Act of God and Inevitable accident might look the same but they are different. Act of God is a kind of inevitable accident in which the natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, ete. Essentials required for this defence are: + Natural forces’ working should be there. + There must be an extraordinary occurrence and not the one which could be anticipated and guarded against reasonably. Working of natural forces In Ramalinga Nadar v. Narayan Reddiar, the unruly mob robbed all the goods transported in the defendant's lorry. It cannot be considered to be an Act of God and the defendant, as a common carrier, will be compensated for all the loss suffered by him. In Nichols v. Marsland, the defendant created an artificial lake on his land by collecting water from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got destroyed andwashed away all the four bridges belonging to the plaintiff. The court held that the defendants were not liable as the same was due to the Act of God. Occurrence must be extraordinary Some extraordinary occurrence of natural forces is required to plead the defence under the law of torts. In Kallu Lal v. Hemchand, the wall of a building collapsed due to normal rainfall of about 2.66 inches. The incident resulted in the death of the respondent's children. The court held that the defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to plead this defence. The appellant was held liable. 13.Difference between servant and independent contractot BASIS FOR COMPARISON SERVANT Meaning ‘An agent is a person appointed —_| A servant is the one by the Principal to act on his employed to do work at behalf. that person's home as a gardener or cleaner, etc. Works for Principal Compensation Commission Salary or Wages Legal An agent can enter into contracts | A servant cannot bring the Relationship on behalf of his/her principal. master and the third party Thus. he/she can bring the into a legal relationship. principal into a legal relationship with a third party.BASIS FOR COMPARISON SERVANT | L —_|_ Direct Control An agent comes under direct Aservant comes under and Supervision | supervision and control of the __| direct supervision and Principal. | control of the Master. ‘An agent can work for many | Servants can work for only principals at the same time. | one master at a time A principal is liable for all the acts | A master is liable for all of the agent performed within _| the acts of the servant the scope of his authority. performed in the course of his employment. Duty Assignment | An agent can never act as a A servant can be assigned servant. prrwecpal the duties of theagent) ag and act like one in certain cases. 14. Explain Volenti_non-fit injuria_as_a defence for tortious liability with Ns. Introduction: Volenti Non fit injuria is one of the defences given to the defendant to escape liability under Tort Law. The phrase is a Latin term which translates, “toa willing person, injury is not done.” This doctrine though is applicable to the extent that a normal person is able to foresee the damages that he would concur. However, for the doctrine to apply the consent of the plaintiff should have been obtained by the defendant prior to the injury or harm caused to the plaintiff. The consent given by the plaintiff could be either expressed or implied. For instance, if the above scenario, a batsman hits another player with his bat, he cannot claim this defence, because the player didn’t consent to such a harm.Essentials of Volenti non fit Injuria ~ 1. Consent — Consent in tort law is said be to given when the below mentioned conditions are fulfilled. And only if there is consent can the defence be claimed, a. Consent must be free - There should be no coercion or fraud in obtaining the consent of the plaintiff. Also, the act causing damages should be done only to the extent for which consent is given by the plaintiff, anything above that the defendant cannot claim this defence. In Lakshmi Rajan vs. Malar Hospital Ltd, a 40 year old woman noticed a lump in her breast and consulted a doctor for the removal of the same. During surgery, her uterus was removed, without giving any justification or information about the same. The court held the hospital authorities liable as the plaintiff (woman) did not gave consent for the removal of her uterus. b. Consent must not be obtained via fraud — In, R. vs. Williams, the accused was found guilty of raping a minor girl by obtaining her consent on the pretence that the act was an operation that would help in improving her voice. While in R. vs. Clarence, the accused was given the defence as although he being active with a sexually transmitted disease didn’t inform her spouse and went on to have intercourse with her, but without any intention of transferring her the disease, despite knowing the risks. The court held that the act of intercourse in a marriage was consented to and thus the defendant was given this defence. 2. Knowledge of the risk doesn’t imply consent - The defence is applicable only when the act causing the harm or injury goes beyond the consent given. The two essentials for the same are — + The plaintiff knew the existing risks, and + After knowing, he agreed to suffer the harm In Bowater vs. Rowley Regis Corporation, a cart driver (plaintiff) was asked by the defendant's foreman, to ride a horse which was most likely to bolt and they both knew. The plaintiff protested at first but gave in to the orders to show his obedience. The horse bolted injuring the driver. The court held that the doctrine wasn’t applicable in this case because even though he knew the risks he didn’t consent to it willingly but more in fear.3. Negligence of the defendant - The doctrine isn’t applicable if the harm or injury occurs due to negligence on part of the defendant. In Slater vs. Clay Cross Co. Ltd the plaintiff was walking along a narrow tunnel on a railway track when she was injured by the driver of the train. While she had knowledge of the risk of walking on a railway track, the train driver knowing well it was dark in the tunnel did not whistle and thus the lady couldn’t save herself and got injured. The court held that the driver was negligent and thus the doctrine won't be applicable. Exceptions to the Defence 1. Rescue Conditions - In cases where the plaintiff voluntarily puts himself or herself at risk, because of a negligence on the part of the defendant or his, actions then the doctrine cannot be invoked. For instance in the case of Haynes vs. Harwood, a two-horse van was left unattended by the driver in the street. A group of children were playing nearby, one from the lot threw a stone at the horses due to which it bolted and started running around. A policeman saw the same and jumped in to get the horse under control as the place was filled with children and woman who could have gotten injured badly. In the process, the policeman was badly injured, the court declined the defence to the defendant as he claimed the policeman was doing his job, but the court held him liable for his negligence of leaving the horses unattended. 2. Plaintiff the wrongdoer — An individual cannot claim his own wrong. A person trespassing on someone’s property is injured due to darkness, he cannot claim for any compensation. However, the defence ceases to exist if the defendant does a wrongful act as well, does not matter if the act of plaintiff was wrongful in the first place. In Bird vs Hollbrook(1828), the plaintiff was trespassing on the defendant's land, and was injured by the spring gun put by him, the court held him liable because he didn’t put any notice of spring guns being on the property. 3. Act of God — It is unreasonable for any person to be held liable for damages cause by an Act of God. The following essential conditions must be fulfilled for an act to be Act of God - + The event must be a result of a natural cause, and + It'should be an extraordinary event, something that no one could have anticipated or expected.4, Private Defence ~ According to Section 96 of the Indian Penal Code, nothing that is done to exercise the right of Private Defence is an offence. The law gives permission to an individual to use reasonable and necessary force to prevent any harm to human body or property, and the injuries due to such force is non actionable. Burden of Proof — For the defence, the onus of proof is on the defendant. It must be proved by the defendant that the consent of the plaintiff obtained by him was free and complete and that he was fully aware of the risks involved. Conclusion Volenti Non fit injuria is a defence granted to the defendant under Tort law, that safeguards him from any liability in case of injury or harm caused to an individual in the process of an act being carried out after getting full and free consent for the same. It is an important maxim that helps people from exploiting defendants if an injury occurs due to their negligence while also punishing the defendant on being negligent. 15.Explain inevitable accident and self defence with appropriate cases. Introduction: The doctrine of “inevitable accident” is a well-established general defense under tort law that negates culpability. It has its origin in the early English common law system. An “inevitable accident” is one that could not have been avoided with ordinary prudence, caution, and skill. Sir Frederick Pollock has defined an inevitable accident as, “not avoidable by any such precautions as a reasonable man, doing such an act then there could be expected to take.” In other words, it refers to an accident that the defendant could not have averted if he had exercised the sort and degree of caution required by the urgency and circumstances in which he found himself. ‘Types of Inevitable Accident in Tort All causes of inevitable accident may be classified into two categories: 1. Those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause; The term “act of God” is associated with this category.; andThose which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance or of misfeasance, or in any other causes independent of the agency of natural forces. As a whole, while the former cause is associated with ‘divine interference’ or ‘act of God’ or ‘vis major’, the latter is connected with ‘human agency or intervention’. Moreover, in the former case, there must be an extraordinary ‘occurrence occasioned by force of nature such as volcanic eruption or extraordinary high tide, lightning, volcanic eruption etc. It must be noted that vis major does not involve human agency or foresight. Essentials of Inevitable Accident in Tort To plead the defence of ‘inevitable accident’ under Tort, the following essentials must be met: There must be an accident; The accident must be unforeseeable, unintentional and unavoidable; There must have been exercise of care, caution and skill as expected of a reasonable person in those circumstances. That is to say, there must be no negligence on part of the person; and . It must result in harm, injury, damage, or loss to another person (the claimant) Limitations of the Defense of Inevitable Accident The major limitation on the application of the defense of Inevitable Accident is that it does not encompass the following torts and principle(s) in tort law: 1. Trespass: The defense of inevitable accident has no place in Trespass cases. This is because the burden of proof lies with the plaintiff and not the defendant. 2. Negligence: On similar lines as in trespass, the defense of inevitable accident has no place in Negligence cases. This is because the burden of proof (of proving negligence of the defendant) lies with the plaintiff. 3. Principle of Strict/Absolute Liability: The defense of ‘inevitable accident’ has no place in cases involving absolute liability. This is due to the fact that strict liability is not affected by variables like recklessness, intent to do the act,knowledge of the act, and so on. In this scenario, liability is predicated only on the risk of substantial injury to others that cannot be avoided even by exercising reasonable care. Furthermore, this doctrine has been applied to activities seen to be excessively harmful or hazardous. This was established in the case of M. C. Mehta v. Union of India. Case Laws on Inevitable Accident In Stanley v. Powell, the defendant and plaintiff went for pheasant shooting. The defendant fired a shot at a pheasant, but the bullet was ricocheted by an oak tree and struck the plaintiff, causing significant injuries. The event was deemed an inevitable accident, and the defendant was held not liable. In Holmes v. Mather, A pair of horses were being led on a public roadway by the defendant's groom. The horses began running very rapidly as a result of a dog barking. The groom tried everything he could to keep them under control, but he couldn’t. The horses knocked down the plaintiff, who was gravely hurt; it was determined that the accident was unavoidable and that the defendant was not responsible. 16. Explain the defence available to defendant under the Tort. ~ The Law of Torts contains some general defences available to parties to escape from the liability of any act or omission. They are as follows: 1. Volenti Non-Fit Injuria Volenti Non-Fit Injuria is a Latin legal maxim that means “voluntarily taking a risk.” It is a situation where a party puts itself in a dangerous situation and incurs damage. To avail the defence of Volenti Non-Fit Injuria, it is necessary to prove that the plaintiff knew about the consequences and still gave consent to it. Such consent to the injury should be free of threat and compulsion. The consent could be either through a statement (expressed consent) or conduct (implied consent). For example, Mr A buys a ticket to watch a live cricket match in the stadium. During the game, Mr A gets hit by the ball. Mr A cannot claim damages in this scenario, as he has impliedly given consent to such a situation.