Law of torts

Ans: Strict liability was initially introduced in the case of Rylands v. Fletcher  in 1868. The case was treated as an aspect of nuisance or a special rule of strict liability. The defendant, in order to improve his water supply, constructed a reservoir by employing reputed engineers. There was negligence on the part of contractors that they didn’t seal the mine shafts which they came across while constructing the reservoir due to which water flooded into plaintiff’s coal mine resulting into damage to the mines of the plaintiff. The plaintiff sued Fletcher for damages. The engineers were independent contractors and thus were not held liable. Justice Blackburn J. held the defendant liable by introducing the concept of strict liability which states that “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerab...

Ans: The nervous shock will be a strict liability tort if it is no fault tort and nervous shock is due to foreseeable damage. 

Ans: There is no remoteness of damage in no fault tort and strict liability as well as absolute liability will be applicable in case of no fault tort. In all the torts, the concept of Injuria Sine Damno is applicable and the contravention of legal right is a subject rather than damages  except in sovereign functions of state liability tort. 

Ans: There is no remoteness of damage in no fault tort and strict liability as well as absolute liability will be applicable in case of no fault tort. In all the torts, the concept of Injuria Sine Damno is applicable and the contravention of legal right is a subject rather than damages except in sovereign functions of state liability tort. 

Ans: A no fault tort is not a viracious liability tort because there is no fault here and no one is responsible here for the fault but it is a tort of forseeable damage. 

Ans: A forseeable damage in strict liability tort will also be related to dangerous thing, non natural use of land and escape. 

Ans: Essentials of absolute liability 1. Hazardous Substance - The accountability for a substance escaping from someone's land will only become apparent if the substance is hazardous or dangerous under the existing criteria. The substance must be hazardous because it is damaging, hurtful, and potentially destructive. 2. Escape - It must be proven that something that caused hurt or damage escaped the defendant's property or property under their control to hold them accountable. In other words, the dangerous material must escape to endanger a victim and establish absolute culpability. However, escape inside the building might also be considered complete culpability. 3. Non-natural use of land - The facts of the case make it obvious. Water storage for residential use can be natural, while large-scale water storage in reservoirs can be unnatural. Growing trees or plants on land might be natural; cultivating toxic plants can be unnatural. 4. Mischief - To hold the offender accountab...

Ans: Absolute liability In the case of M.C. Mehta v. Union of India , the doctrine of absolute liability was developed. This case was a significant turning point in Indian legal history by establishing a new rule. The rule stated that an enterprise is strictly liable to compensate all those harmed by an accident when the enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone as a result of an accident in the operation of such hazardous or inherently dangerous activity. M.C. Mehta v. UOI- A company owned by Union Carbide was established in Bhopal. The factory produced pesticides and similar goods. 40 tonnes of hazardous gas were released by the plant overnight on December 2nd, 1984. (methyl isocyanate). The surrounding region of the facility turned into a gas chamber, resulting in 3000 fatalities and numerous injuries. All of the plant's safety systems were determined to be broken throughout the examination. The Supreme Court decided against...

Ans: Exceptions of strict liability 1. Plaintiff’s own fault- Ponting vs Noakes would be a perfect example. In this instance, the plaintiff's horse entered the defendant's property, ate some wild tree leaves, and passed away. The damage would not have been caused if the plaintiff's horse had not trespassed on the defendant's property. Hence, the defendant was not held accountable. As there was no way out, the strict responsibility rule would not be applicable. 2. Act of God- Whatever natural occurrence that is unpredictable, uncontrollable, or unavoidable is not to be held responsible for any damage it does. In Nicholas v. Marsland, 1876, the plaintiff's four bridges were destroyed when the defendant's artificial lake flooded due to heavy rains. To obtain the damages, the plaintiff filed a lawsuit. It was decided that the defendant was not responsible since an act of God caused the accident. 3. Volenti non-fit injuria/ mutual benefit-  Volenti non fit injuria is...

Ans: The concept of strict liability was introduced in the late nineteenth century. The principle originates from the idea of negligence which means having lack of care for any act. In simpler words, it can be explained as a situation where one person has a duty of care towards the other, supposedly a tenant and breach of such duty leads to certain harm to the other person who is the tenant. Where there is negligence on part of the defendant, he or she is liable to pay damages and compensate the aggrieved. In contrast with the concept of strict liability, the defendant or doer is held liable irrespective of presence of any negligence on his part.  The concept of strict liability can be understood in a more transparent way by checking the application of following essentials in any situation simultaneously: Dangerous thing In literal terms, the term dangerous means anything which is likely to cause any sort of harm or damage. The first and foremost essential to constitute an act of s...

Ans: Due to the mistake of the defendant if the legal right of the plaintiff is violated , the defendant is liable to pay compensation, this is a fault-based liability. But when there is a violation of the plaintiff’s legal right, and the violation is not done by the defendant, even then the defendant is liable to pay compensation to the plaintiff , it is a no-fault liability or we can say that there is no mistake of defendant and the legal right of plaintiff has been violated and  the defendant is liable  for the violation of legal right of defendant,  it is no fault liability. 

Ans: If there is psychiatric damage in nervous shock, it is also a contravention of right to health which is a part of right to life under Article 21 of Indian Constitution.  The remoteness of damage will be considered here but only one test will be performed here i.e., test of reasonable foresight.   The test of directness will not be considered here and test of reasonable foresight will be considered here and it was to be found how much proximity is in the psychiatric damage of the tort.

Ans : Wagon Mound Case A vessel was chartered by appellant. When vessel was taking fuel oil at Sydney Port, due to negligence of appellant's servant large quantity of oil was spread on water. About 600 ft., the respondent was having workshop, where some welding and repair work was going on. After 60 hours that oil caught fire and whole workshop was destroyed and incurred heavy loss. In this case, trail court applied test of directness and held appellant liable. But after appeal, The Privy Council decided that the Test of directness is no good law and applied Test of reasonable foresight and held appellant not liable because foresight can not be extrapolated. 

Ans: Smith vs London South Western Railway Co. Due to negligence of Railway heap of dry grass which was collected in to the railway compound caught fire and because of wind, Plaintiff's cottage was burnt. Here defendant was held liable. Test of the directness was applied. But after some time Privy Council rejected the test of directness and said that it is not relevant and applied test of reasonable foresight in which foresight was very far and can not be perceived. 

Ans: In Re Polemis case, court rejected test of reasonable foresight and applied test of directness of tort of remoteness of damage.  Re Polemis Case The defendant hired (chartered) a ship. He loaded ship with tin of benzene and petrol. Due to leakage of the tins some petrol collected on the hold of ship. Due to negligence of defendant servant, a plank fell on the hold and spark caused fire in the whole ship. Ship was burnt totally. Here defendant was held liable although he cannot reasonable foresee. Test of directness was applied.

Ans: The consequences of wrongful act may be endless . No defendent can be made liable 'ad infinitum' for all the consequences which follows his wrongful act. The defendent is only liable for the consequences which are not too remote or proximate. Scott V. Shepherd A threw a lighted squib into the crowd, it fell down upon X , X to prevent himself threw it on Y. Y in turn threw on B and B lost his one of the eyes.  Here A was held liable because the  consequences were proximate. Here only A was held liable and it is not a composite negligence.

Ans: A nervous shock can be  an intentional tort or tort of negligence and can be a no fault tort.  It is definitely a strict liability tort in  if Article 21 i.e. right to health which is part of right to life has been violated. Since the article 21 , i.e., right to health which is a part of right to life has been contravened,  it is also punishable in tort of negligence.  In case of tort of negligence, fault has been committed by defendent  like rash driving but in case of no fault tort , fault has not been committed by defendent like leakage in tank.

Ans: Right to Health is a part and parcel of Right to Life and therefore right to health is a fundamental right guaranteed to every citizen of India under Article 21 of the Constitution of India. In case of injury or illness due nervous shock, the right to health has been violated which is fundamental right under Article 21 of constitution of India and according to 'Injuria sine damno', the legal right must be violated for tort. So , in case of nervous shock with injury both the legal right has been contravened and damages also occur. 

Ans:  Tort law protects the interests of the individual and adjudicates private wrongs. It is a judicial proceeding developed through case law in which the rules of evidence apply. Fault or negligence is an important issue in tort law and tort law is fault oriented. Tort law deals with civil wrongs for which the law provides compensation. It protects equity between individuals by providing compensation for damages, so that the status quo that existed prior to the harm can be reestablished between the parties. The rationale behind the law of nervous shock is that the body is controlled by its nervous system (an essential part of the body) and if by reason of an acute shock to the nervous system the activities of the body are impaired and as a consequence is prevented from functioning normally, there is a clear “bodily injury”. It is important to note that the cause of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result...

Ans:  The law relating to nervous shock has a long history of recognition. The question of recovery for nervous shock (or psychiatric injury) negligently caused by another has been one which has perplexed various courts in various common law jurisdictions throughout the world since it was first established in the case of  Byrne v Southern and Western Railway Co . In no area of tort, is the task of providing liability more difficult or more contentious than in the case of nervous shock where the victim claims is based on psychiatric damage. Where the damage is the result of the effects that are suffered by another due to carelessness of the tortfeasor.  Medically speaking nervous shock would mean the following: circulatory failure marked by a sudden fall of blood pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes complete collapse. Its causes include disease, injury, and psychological trauma. In shock, the blood pressure falls below that neces...

Ans: The major defences can be raised in an action for negligence viz : a) Vis Major (Act of God)  b) Inevitable Accident  c) Contributory Negligence of the plaintiff  d) Volenti non fit injuria ( Defences of consent ) e) Express contract (clause for contracting out of negligence; the courts; however, construe such exemption clauses very strictly and f) Judicial acts, executive acts and statutory authority- in very exceptional and appropriate cases. (a) Vis Major Vis Major (or act of God) is such a direct, violent, sudden, and irresistible act of nature as could not, by any amount of human foresight, have been foreseen, or, if foreseen, could not, by any amount of human care and skill, have been resisted. Thus, acts which are occasioned by the elementary forces of nature, unconnected with the agency of man or other cause, will come under the category of acts of God, e.g. storm, tempest, lightning, extraordinary fall of rain/ high tide/ severe frost, etc. (b) Inevitable ac...

Ans:  LEADING CASE: MUNICIPAL CORPN., DELHI v SUBHAGWANTI ("CLOCK-TOWER CASE") (AIR 1966 SC 1750) In case, due to the collapse of the Clock Tower situated opposite to Town Hall in the main bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the Municipal Corporation of Delhi and was exclusively under its control. The trial court held that it was the duty of Municipal Committee to take proper care of the building so that they should not prove a source of danger to the persons using the highway as a matter of right. The High Court held that the principle of res ipsa loquitur applied to case that it was the duty of the Municipal Committee to carry out the periodical examination for the purpose of determining whether deterioration had taken place in the structure of building and whether any precaution was necessary to strengthen it. The court found from the evidence that apart from superficial examination from time to time, there was no evidence o...

Ans: The accident itself constitutes reasonable evidence of negligence in the particular circumstances. If a brick falls from a building and injures a passerby on the highway, or the goods while in the possession of a bailee are lost, or a stone is found in a bun, or a bus going on the road overturns, or death of a person is caused by live broken electric wire in a street, or portico of a newly constructed hospital building falls down and results in the death of a person, a presumption of negligence is raised. In Shaymal Baran Saha v State of W.B. (AIR 1998 Cal. 203), the plaintiff (a young boy) was standing in a queue for purchasing ticket of cricket match. Arrival of very large number of people into the queue ended in a stampede. The boy trampled under the feet of panic-stricken crowd. The incident occurred due to failure of Cricket Association conducting the match and State Govt. to ensure safety/security of people in queue and to provide proper facilities such as tickets, drink...

Ans: The well-established doctrine of res ipsa loquitur, in connection with proof of negligence, has been consistently followed in India. (1) By applying this maxim, the burden of proof is shifted from the plaintiff to the defendant. Instead of the plaintiff proving negligence the defendant is required to disprove it. The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff by not requiring him to prove negligence. (2) The maxim applies when- the injurious agency was under the management or control of the defendant, and (ii) the accident is such as in the ordinary course of things, does not happen if those who have the management use proper care. There must be no evidence of the actual cause of the accident. (3) The rule that it is for the plaintiff to prove negligence is in some cases, of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plainti...

Ans: When the accident explains only one thing i.e. the accident could not ordinarily occur unless the defendant been negligent the law raises a presumption of negligence on the part of the defendant. In such a case, it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disproving negligence on his part (rebuttal of the presumption of negligence). The application of the maxim has been explained thus: "There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident in such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care" [Scott v London & St. Katherine Docks Co. (1865) 3 H&C 596].

Ans: As a rule, the onus of proving negligence is on the plaintiff. He must not merely establish the facts of the defendant's negligence and of his own damage, but must show that the one was the effect of the other. There are, however, certain cases when the plaintiff need not prove that and the inference of negligence is drawn from the facts. Thus, direct evidence of the negligence is not always necessary and the same may be inferred from the circumstances of the case. There is a presumption of negligence according to the Latin maxim 'res ipsa loquitur' which means the thing speaks for itself.

 Ans: There are three kinds of remedies available in the case of a nuisance, these are: 1. Injunction An injunction is a judicial order restraining a person from doing or continuing an act which might be threatening or invading the legal rights of another. It may be in the form of a temporary injunction which is granted on for a limited period of time which may get reversed or confirmed. If it is confirmed, then it takes the form of a permanent injunction. 2. Damages The damages may be offered in terms of compensation to the aggrieved party, these could be nominal damages. The damages to be paid to the aggrieved party is decided by the statue and the purpose of the damages is not just compensating the individual who has suffered but also making the defendant realise his mistakes and deter him from repeating the same wrong done by him. 3. Abatement Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any legal proceedings. This kind of remedy ...

Ans: The doctrine of ‘ vicarious liability' is generally termed as ‘liability for the acts of others.  Vicarious is derived from the Latin term ‘vice’ i.e., in the place of. By this phrase, we mean the liability of a person for the tort of another in which he had no part. It may arise under the common law or under the statute. The term is claimed to be invented by the English jurist Frederick Pollock in the 1880s. Vicarious can be defined as “a concept used to impose strict liability on a person who does not have primary liability, that is, not at fault.” Vicarious liability is not a tort. Literally, it means that one person is liable for the torts of another. The employer is liable for the torts of his employee. “Liability based not on a person’s own wrongdoing, but rather on that person’s relationship to the wrongdoer”. This liability arises only when the employee is acting in the course of his or her employment.  The case of Tuberville v. Stamp, (1697) held that “the maste...

Ans: In accordance with Underhill's law of torts, an extreme youth might afford a defence to an infant in certain types of action such as actions for fraud or negligence and perhaps even defamation; but as actions are not brought against children,  there is no direct decision on this point . An infant, however who has reached years of discretion is as liable for his torts as an adult subject to important exception. Generally speaking an infant is not liable on his contract,  and as the law will not permit an infant to be sued in tort which is so connected with his contract as to be a part of same transaction. Where, therefore, the act is connected with a contract it must in order to render an infant liable for it, be a wrongful act independent of the contract in the sense of not being of the kind contemplated by it. An infant will be liable for the following torts if he is matured enough to understand the consequences of the act. These acts are as follows: 1. Assault 2. False ...

Ans: In 'Tort per se actionable ',  the injured party will have to prove that the damages happened due to tort of tortfeasor , and thus tortfeasor is liable to pay damages to injured party. 

Ans: Actionable per se means the actions that do not require the allegations or proof of additional facts to constitute a cause of action. Such a tort is actionable simply because it happened. In such actions, the plaintiff does not have to prove that he suffered any damages in order to have a cause of action. Tort claims normally require proof of damages. If you haven't suffered any loss, you have no claim. A tort that is actionable per se does not require proof of damages to be actionable; such a tort is actionable simply because it happened. Of course, if a person is unable to show that he has suffered any loss, the damages he recovers are unlikely to be significant. Defamation and trespass are two class examples of torts that are actionable per se. Illustration:  In cases of assault, battery, false imprisonment, libel or trespass on land, the mere wrongful act is actionable and it is immaterial that the plaintiff has not suffered any damage as a result of it. Words are act...

Ans: Right in Rem and Right in Personam both are legal rights and both right in rem and right in personam can be violated in case of tort. Right in Rem:  When you sign a contract, you are given certain rights that are attached to the specific thing or property mentioned in the contract. These rights are called "rights in rem" or "property rights". Right in Personam: A right in personam is different from a right in rem, and it is a legal right that is conferred on a single person or party to a contract. Rights in rem are rights that relate to a specific property and can be enforced against anyone who interferes with that property. On the other hand, rights in personam are rights that relate to a specific person and can only be enforced against that person. Rights in rem are considered absolute rights because they are enforceable against anyone who interferes with the property, regardless of whether that person has any relationship with the property owner. In contra...

Ans: Yes , tort is a civil wrong. Tort is a civil wrong.   In the commission of a tort, the duty imposed by law was breached by a wrongdoer. Here, the duty is to the general public as a whole, not a particular social group. Besides breach of duty, the wrongdoer is also said to have violated the right in rem of a private person.   The said breach of duty is recoverable and the remedy for the same is common law action for unliquidated damages. Thus, the injured party has the right to compensation.   Tort is neither a breach of contract nor a breach of trust nor any other similar obligations.

Ans:  Types of tort: 1.     Intentional Tort:     Intentional Tort is Tort which was performed with Intention.   Eg: Assault, Battery, Conversion, Fraud, False imprisonment, trespassing and invasion of privacy.   2.       Negligence of Torts:   a)     The D owed a duty of care   to the B . b)    The Duty of care was breached by the D unintentionally. c)     P suffered injuries due to negligence of   D d)    Breach of duty was the actual and legal cause of duties suffered by P.   3.     Strict Liability Torts: The company Union Carbide Corporation has the strict liability of discharging the services of gas methyl isocynate without leakage.   E.g.,   Bhopal Gas Tragedy   Keywords used :  In criminal law, battery is defined as any physical act that results in harm or offense to another p...

Ans: Tort in Injuria Sine Damno and Damnum Sine Injuria. Injury means the legal right has been violated.  In Injuria Sine Damno, there is an injury without damage.  Here, the legal right has been violated  but there is no damage and the essential condition in Tort is that the legal right must be violated. Thus, Injuria Sine Damno is to be considered in Tort.  Damnum Sine Injuria means there are damages but there is no injury. Here, there are damages but the legal right has not violated. The essential condition in tort is that the legal right must be violated but here there is no violation of legal right. Hence, Damnum Sine Injuria is not considered in tort.

 Ans:  LEADING CASE: KHENYEI V NEW INDIA ASSURANCE CO. LTD. [AIR 2015 SC 2261] [In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and recover the entire compensation from any of them, as liability of joint tort feasors is joint and several. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. In the instant cases, injuries were sustained by the claimant when two vehicles - bus and trailor-truck collided with each other. The present case was held to be that of 'composite negligence' where injuries were caused to the claimant by combined wrongful act of joint tort feasors. The main question which arose for consideration was, whether it is open to a claimant to recover entire compensation from one of the joint tort...

 Ans: In contributory negligence, the plaintiff's own negligence contributes to the harm he has suffered, whereas in composite negligence, there is negligence on the part of two or more defendants towards the plaintiff, and the plaintiff himself is not to be held liable."

Ans: In Jacob Mathew v State of Punjab [(2005) 6 SCC 1], the court came to the conclusions:  (i) Mere deviation from normal professional practice is not necessarily evidence of negligence. (ii) Mere accident is not evidence of negligence.  (iii) An error of judgment on the part of a professional is not negligence per se. (iv) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor. The case of Jacob Mathew vs state of Punjab is an important judgment on the point of negligence by a doctor the principals has been given on this point the story of this case in short is that late jeevan lal Sharma father of the informant who was admitted as a patient in the private ward of CMC hospital Ludhiana on 22/2/95 at above 11 pm he felt difficulty in breathing.  Informants elder brother Vijay Sharma was present there and he contacted the duty ...

 Ans: The Bolam Test and the Bolitho Test make up the twin pillars of all assessments of medical negligence. They state that a doctor is not negligent if he or she acts in conformity with a responsible body of medical opinion, provided that the Court finds such an opinion to be logical. 

Ans: In Bolitho v City and Hackney Health Authority (1997) 4 All ER 771, Lord Wilkinson observed: "The Court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice. The use of these adjectives responsible, reasonable and respectable - all show that the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving the weighing of risks against benefits, the Judge before accepting a body of opinion as being responsible, reasonable and respectable, will need to be satisfied that in forming their views the experts have directed their minds to the question of comparative risks and benefits, and have reached a defensible conclusion on the matter."

Ans: LEADING CASE: MALAY KUMAR GANGULY Vs. SUKUMAR MUKHERJEE [AIR 2010 SC 1162] The standard of care on the part of a medical professional involves the duty to disclose to patients about risks of serious side effects of medicines or about alternative treatments. If the doctor/hospital knowingly fails to provide some amenities that are fundamental for patients, it would certainly amount to medical malpractice. An act which may constitute negligence or even rashness under torts may not amount to same under Sec. 304A, IPC. For criminal prosecution of a medical professional for negligence, it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. Section 304A IPC is causing death by negligence.  In this case, the patient Anuradha (a child psychologist) and her husband arrived in Kolkata from USA for a vacation on 1 April 1998. Anuradha ...