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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Class : SECOND SEMESTER Paper Code :LB 104 Subject : LAW OF TORTS Unit-I: Introduction and Principles of Liability in Tort a. Definition of Tort Torts are civil wrongs for which the injured party may seek legal redressal for.” The injured party in case of torts is entitled to claim ‘unliquidated damages'. Tort law is largely based on common sense and the understanding prevalent between people in their everyday interactions with each other. The purpose of tort law is to ensure that people reasonably coexist with each other. In case of a tort case there are two parties involved in it i.e. plaintiff and defendant. Plaintiff is the person whose rights have been violated, the one who has been injured. He is the one who is the complainant, who comes to the court seeking remedy. On the other hand defendant is a person who has violated the rights of the other person and has injured the other person. The word Tort is derived from a Latin word 'Tortus' which means 'twisted' or 'cooked act'. In English it means, 'wrong'. The term ' Tort' means a wrongful act
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) committed by a person, causing injury or damage to another, thereby the injured institutes (files) an action in Civil Court for a remedy viz., unliquidated damages or injunction or restitution of property or other available relief. Unliquidated damages means the amount of damages to be fixed or determined by the Court. The Law of Torts In India Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India. The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Gujarat , Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive. b. Distinction between Law of Tort, contract, Quasi-contract and crime A. Difference between Tort Law, & Contract Law : Tort law in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages. While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available. If there is no remedy it cannot be called a tort because the essence of tort is to give remedy to the person who has suffered injury. Whereas, The law relating to contracts in India is contained in INDIAN CONTRACT ACT, 1872. Tort law : torts are focused on a "actionable wrong." That is, it is a civil action based on an injury (physical or psychic) inflicted by one party upo
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) another. This is where you find actions such as assault, battery, intentional infliction of emotional distress, and product liability. Whereas, Contract law: contract law deals with the formation, drafting, and consequences of a legally binding agreement between two parties. In contract law you will find issues such as whether a contract was formed, the consequences for breach of the contract, and what elements constitute the contract (I.e., weather outside evidence can be used to understand the will of the parties). Tort law governs your responsibilities to other members of the public. Whereas, Contract law governs your responsibilities to the other party in a contract. B. Tort and Quasi-Contract: Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society. In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state. In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awrding compensation in a criminal prosecution is punitive rather than compensatory. The damages in tort are unliquidated and in crime they are liquidated. c. Constituents of Tort: Injuria sine damnum, Damnum sine injuria Injuria Sine Damno Injuria sine damno means the violation of a legal right without causing any harm, loss or damage to the plaintiff. It is just reverse to the maxim damnum sine injuria. In Ashby v. White, (1703) 2 LR 938 , the plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won in spite of that. The defendant was held liable, even though his actions did not cause any damage.
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) In case of injuria sine damno, the loss suffered by the plaintiff is not relevant for the purpose of a cause of action. It is relevant only for assessing a number of damages. If the plaintiff has suffered no harm and yet the wrongful act is actionable, nominal damages may be awarded. Damnum Sine Injuria It means damage which is not coupled with an unauthorized interference with the plaintiff’s lawful right. Causing of damage, however substantial, to another person is not actionable in law unless there is also the violation of a legal right of the plaintiff. In Gloucester Grammar School case , the defendant had set-up a rival school to that of the plaintiffs with the result that the plaintiffs were required to reduce the tuition fees of their school substantially. It was held that the plaintiff had no cause of action against the defendant on the ground that bonafide competition can afford no ground of action, whatever damage it may cause. In Mayor of Bradford v. Pickles, (1895) AC 587 , the House of Lords held that even if the harm to the plaintiff has been caused maliciously no action can lie for the same unless the plaintiff can prove that he has suffered injuria. In this case, the plaintiffs had been deriving water from the adjoining land of the defendant which was at a higher level. The defendant sank a shaft over his own land which diminished and discolored the water flowing to the land of the plaintiffs.
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) and so the person must put himself in the situation by his own choice. There are two things which should be established in order to use this defense. (a) That the plaintiff knew or could have expected the risks involved in such a situation. (b) That the person agreed by a statement or conduct, to suffer the consequence of the risk without force or compulsion or threat.
- Plaintiff is the wrongdoer: the most important thing in this case would be that the plaintiff did something wrong which caused him the injury. Since he plaintiff did something wrong so he cannot claim damages from someone else for the injury caused to him. For example, if a person walks into someone's house and if it is written on the gate that ‘beware of dog', the dog bites him then the plaintiff entered the house after knowing the risk, as a result he cannot ask for compensation, also he was the wrongdoer.
- Inevitable accident: When an injury is caused to a person by an event that could not be foreseen and avoided despite reasonable care on the part of the defendant, the defense of inevitable accident can be used. For instance, by ‘inevitable' it is not meant that the accident was bound to happen, but rather, that the accident could not have been avoided despite reasonable care. After all, how can a person be blamed for something that he had no control whatsoever over or could not prevent? For example, a situation where the defense could not be used is that of a person who, while trying to separate two people fighting, hits another person accidentally. Here the injury is negligence and no negligence is involved.
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
- Act of God: This defense is similar to the defense of inevitable accident according to me. The only difference is that in the defense of Act of God the accident happens to occur because of unforeseen natural event. The requirements which are to be satisfied are (a) the injury most be caused by the effect of natural forces, (b) the natural forces must be unforeseen, or the effects must be unavoidable. So even if a natural event like a storm is taking place, if one can take precautions and avoid the damage, the defense cannot be used.
- Private defense: If one injures someone, or something that belongs to someone else, while defending self or own property, then one can be excused if the force used to protect self was reasonable. For instance, if someone punches you on stomach and you shoot him that would be an excessive use of force which is not necessary for defending yourself. The following must be satisfied in order t claim this defense: (a) the defendant must be under threat or under attack, (b) the defense must be for self-defense and not for revenge, (c) the response must be proportional to the attack or threat. The principle for this is that the law will not hold you responsible for an action that you performed in order to save or protect yourself. If, however, it was not necessary to use force for protection, the law will not protect, and you can't use this defense.
- Mistake: Mistake is not usually a defense in tort law. It's not good enough to say that you didn't know you were doing something wrong. This defense can
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Unit-II: Specific Torts-I a. Negligence Negligence It is one of the most important in case of torts. This is because it is frequently committed and also there is some type of negligence in most of the tort cases according to me. Tort is negligently committed, i.e. negligently causing nuisance, negligently trespassing on someone's land, etc. in order to establish the tort of negligence, it must be proved that:
- The defendant owed a duty of care to the plaintiff
- The defendant breached that duty, either totally or partially.
- The plaintiff suffered damage as a result of this breach of duty. Duty of care: for showing an act of negligence, the plaintiff must show that the defendant owed the plaintiff a legal duty of care. A legal duty is different from moral, social or religious duty. In case of Donoghue vs. Stevenson, the plaintiff filled an action for negligence against the manufacturer claiming that she had been seriously injured by the contents of the drink. The defendant claimed in his defense that he had no duty as she did not buy the bottle. But the court held that the manufacture owed a duty of care to the plaintiff and to all its consumers. The court also held that the manufacturer had breached the duty and caused damage, and was
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) therefore negligent. I would like to also state that the duty is only there where the injury is foreseeable. Breach of duty: After having established that the defendant owes the plaintiff a duty of care it must then be proven that the duty was breached. For seeing whether due care was taken, one must what was the standard of care required in that situation. If the care taken is less than standard care than there is a breach of duty. Damage as a result of Breach of Duty: in order to succeed in a legal action based on negligence, it is necessary to show that the plaintiff suffered some damage. The plaintiff has to show the incident happened and it caused injury to him. Also the defendant was in control of or responsible for whatever caused the incident. b. Nervous Shock A nervous shock is a form of personal injury for which damages may or may not be awarded as it depends on the facts of the case that whether the defendant is responsible for carrying Nervous shock to the plaintiff or not. The plaintiff may be a sensitive plaintiff then the test is of ordinary prudence i.e. if it would have been some other person of ordinary prudence in the given situation then it would have caused the same loss to him also. Example of Nervous shock is not visible as wounds but the plaintiff/sufferer appearing on the body. The law of nervous shock is gaining popularity as a civil wrong and many cases are settled in court of law giving relief to the plaintiffs.The
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) In McLaughlin v O’Brien (1982) 2 QB 40 the proximity factor was further expanded and clarified. The claimant’s husband and three of her children were involved in a serious road traffic accident in which their car was struck by a lorry due to the negligence of the defendant lorry driver. Unfortunately one of the children was killed on impact. An ambulance took the injured parties to hospital. Another of the claimant’s sons was a passenger in a car behind the family. The driver took him home and told his mother of the incident and immediately drove her to the hospital. She saw her family suffering before they had been treated and cleaned up. As a results he suffered severe shock, organic depression and a personality change. She brought an action against the defendant for the psychiatric injury she suffered. The Court of Appeal held that no duty of care was owed She appealed to the House of Lords. The appeal was allowed and the claimant was entitled to recover for the psychiatric injury received. The House of Lords extended the class of persons who would be considered proximate to the event to those who come within the immediate aftermath of the event.. Legal issue settled: i.Proximity factor further expanded and clarified: Means of shock must come through Direct perceptions of sight, or hearing of the event on or of its immediate aftermath ii.Aftermath Doctrine: ‘Reasonable foreseeability ’ toi ncludes aftermath scenario. iii.Three part control mechanism suggested by Lord Wilburforce: a) Classes of persons whose claim should be recognised. The closer theemotional tie, the greater the claim for consideration b) Proximity of such persons to the accident c) Means by which psychiatric illness was caused
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Nuisance “In tort law, causing ‘nuisance' means ‘unreasonably interfering' with a person's right over, and in connection, with his property or his land.” Nuisance may be caused in various ways, such as the causing of unnecessary noise, heat, smoke, smell and other such disturbing activities. For example, your neighbor unnecessary is in the habit of setting on fire the morning piles of the dead leaves. He burns these in his garden, but the smoke from this fire blows into your house, and this is a type of general disturbance for you. Such behavior would constitute nuisance and since you are denied the right to live in your property and enjoy their safely, so you could complain about this nuisance, even a tenant could complain in a fixed time frame. There are two types of nuisances, public nuisance and private nuisance.
- Public Nuisance: This type of nuisance occurs when the right of the general public is interfered with. For instance, if a person deliberately blocks a road with his vehicle, then he interferes with the right of the public in general, and that would be a public nuisance. This is because the road is a public property, and by blocking it, the person interferes with the public exercise or enjoyment of that property. Public nuisance is a sort of crime and it is not merely a civil wrong committed against the rights of a person, and commission of a public nuisance results in punishment by the state, which may impose a fine or
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) attention and asked her if she had made any purchase. When she inquired why, the employee asked, “What about that bag in your hand?” The customer said that it belonged to her and she opened it to show by its contents that it was not a new bag. The employee gave the customer a “real dirty look” and went back into the store without saying a word. The customer then sued the store for false imprisonment. Was the store liable? No. Judgment would be for the store. There was no false imprisonment because there was no actual detaining of the customer. The circumstances did not show the use of force or threat of force that stopped the customer from proceeding on her way. Her action of stopping and showing the contents of her handbag was voluntary. Malicious Prosecution Malicious prosecution it a legal term that refers to the filing of a civil or criminal case that has no probable cause, and is filed for some purpose other than obtaining justice. When such a case is decided in favor of the defendant, he may turn around and file a civil lawsuit against the plaintiff or prosecutor for malicious prosecution, seeking damages. To explore this concept, consider the following malicious prosecution definition.
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An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Elements of Malicious Prosecution In order to be successful in this type of lawsuit, certain elements of malicious prosecution must be proven. If any one of the following four elements is missing, the case is likely to be dismissed, or a judgment entered against the plaintiff.
- The original case was terminated in favor of the plaintiff (who was the defendant in the original case) – this case must have ended before a malicious prosecution suit can be filed.
- The defendant filed, or played an active role in, the original case – the defendant must have been responsible for bringing the original case, not simply have been a participant in the case.
- The defendant had no reasonable grounds, or probable cause, to file and pursue the original case – it must be proven that the defendant had no actual belief that the plaintiff was guilty or liable in the original case.
- The defendant filed or pursued the original case for an improper purpose – it must be proven that the defendant pursued the original case for an abusive purpose, such as a desire to ruin the plaintiff’s reputation, or simply out of malice or ill will. Prosecutorial Immunity State and federal laws grant what is known as prosecutorial immunity to prosecutors and other law enforcement officials. This helps ensure prosecutors are able to do their jobs without constantly facing malicious prosecution lawsuits. The
