History II

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
SEMESTER: second semester
Name of the Subject:
LAW OF TORTS
SEMESTER: second semester
Name of the Subject:
LAW OF TORTS

WHAT IS TORT ?
• A tort is a civil wrong
• That (wrong) is based a breach of a duty imposed by law
• Which (breach) gives rise to a (personal) civil right of action
for for a remedy not exclusive to another area of law.

DIFFERENCE BETWEEN TORT AND CONTRACT
• A distinct difference between contract and tort laws lies in the issue of consent.
In contract law, both parties must enter an agreement knowingly and without
coercion.
• Each party must consent to the contract and its outcomes. In tort law, the
interaction between the parties is not based on consent. Usually, torts occur by
the intrusion of one party to another that results in some type of harm.
• Courts will award damages in a contract case to restore the injured party to
where they were before the breach occurred. In a tort case, a court will award
damages to compensate the victim for their loss.

HOW DOES A TORT DIFFER FROM A CRIME?
• A crime is a public /community wrong that gives rise to sanctions usually
designated in a specified code. A tort is a civil ‘private’ wrong.
• An action in criminal law is usually brought by the state or the Crown.
Tort actions are usually brought by the victims of the tort.
• The principal objective in criminal law is punishment. In torts, it is
compensation.

CONCEPT OF INJURIA SINE DAMNUM,
&
DAMNUM SINE INJURIA

INJURIA SINE DAMNUM
 Injuria Sine Damno (Injury Without Damage) is where a person`s legal
right is violated but the person may not have suffered a damage or loss.
 In this case, a person doesn’t have to prove the damage. It is sufficient to
show the violation of a legal right in which case the law will presume
damage.
 For e.g., assault, libel, trespass on land, etc.
 Ashby v. White is the leading case of injuria sine damnum.

DAMNUM SINE
INJURIA
• In Gloucester Grammar School Master
case, a teacher opened a school named XYZ
to teach grammar to the students. After few
days, another teacher opened a school
named ABC which was right opposite XYZ.
Most of the students from XYZ school took
admission in ABC thereby causing monetary
damages XYZ. The teacher of XYZ filed a
suit but the court dismissed the petition
because even though damage was suffered,
the legal right was not violated.
Damnum Sine Injuria
(Damage without Injury) is
when a damage suffered
without breach of a legal
right but such claim of
damage is not valid in
court of law.

JUSTIFICATION IN TORT

VOLENTI NON-FIT
INJURIA
• Hall vs brookhands auto racing club
• Fact -
Plaintiff was a spectator, during car race,
there was collision between two cars, one of
the car thrown among the spectators ,thereby
injuring the plaintiff.
• Held -
Here defendant was not held liable .
The maxim volenti non-fit injuria was
applied.
Defense of consent is
general defence under the
law of tort according to the
doctrine of volenti non-fit
injuria, if a person
voluntarily gives consent to
suffer from harm himself
then he is not entitled to
remedy under law of torts. It
means if a person is aware
about risk and voluntarily
accept any task then he
cannot claim and remedy.

PLAINTIFF’S DEFAULT
• The mere fact that plaintiff was wrong doer doesn’t entitle him from
recovering damages from defendant for wrongful act.
• Maxim Used : “Ex turpi causa non oritur actio” From an immoral cause, no
action arises.
• Case Law : Bird V. Holbrook
Bird (Defendant) set a spring gun trap in his garden to protect his property.
The spring gun trap injured Holbrook (Plaintiff) innocent trespasser.Plaintiff
sued the defendant and claimed for damages.Defendant was held liable

INEVITABLE ACCIDENTS
• The doctrine of inevitable
accident is a significant defence
in the law of torts and especially
in the area of road accidents. It
concerns a situation where a
person, exercising due care,
diligence and ordinary prudence,
could not have foreseen or
avoided an accident.
• Stanley V. Powell
Plaintiff and defendants were the
members of a shooting party.
Defendant was focusing on a
pheasant. One os his pallet from
his gun hit the branch of the tree
that changed it’s direction and
accidentally wounded the
plaintiff. Since it was sheer case
of accident, and was not
foreseeable defendant was not
held liable.

ACT OF GOD
• Extra ordinary occurrence of circumstances which could have not been
foreseen and guarded against,or more accurately,due to natural cause
directly or exclusively without human intervention.
Two Essentials of Act Of God :
1. There must be working of natural forces.
2. Occurrence must be extra ordinary and not one which could have been
guarded against.
• Nichols V. Marsland is the famous case of Act of God.

PRIVATE DEFENSE
• The law permits use of reasonable force to protect one’s person or
property.If defendant uses force which is necessary for self defence, he
will not liable for the harm caused thereby.
• The use of force should be justified only for the purpose of defence. There
should be imminent threat to the personal safety or property.
• The force should not be excessive.
• Bird v. HolBrook

NECESSITY
• LEIGH V. GLADSTONE
Forcible feeding of hungry striking labour to
save her life was held to be good defence.
• COPE V. SHARPE
Defendant entered plaintiff’s land to
prevent the spread of fire,adjoining land
over which defendant’s master had
shooting rights.Therefore Defendant was
not held liable.
An act causing damage,if
done under the necessity to
prevent a greater evil is not
actionable even though the
har was caused
intentionally.
Salus Populi is Supreme
Law which means welfare
of people is supreme law.

MISTAKE
• Mistake either of fact or law, is generally no defence to n action for tort. When
a person carefully interferes with the rights of another person, it is no defence
to say that he had honestly believed that there was some justification for the
same.
• CONSOLIDATED CO. V. CURTIS & SONS
Auctioneer was asked to auction certain goods by his customers. Auctioneer
believing to customer auctioned them and paid the customer. But those goods
belonged to someone else.

UNIT - 2

WHAT IS NEGLIGENCE
• Negligence as a tort is a “breach of a legal duty to take care which results
in damage undesired by the defendant to the plaintiff.”
The elements of negligent tort are :
• that there must be a breach of duty to a known standard of care;
• that the breach of that duty was the actual cause and the proximate cause
of the harm to the plaintiff; and
• that the plaintiff was harmed, to which the law provides a remedy.

Donoghue v Stevenson [1932] AC 562 established the tort of negligence. Lord
Atkin saying that “In English law, there must be and is some general conception
of relations giving rise to a duty of care…”
The House of Lords found that the P could recover damages from the
manufacturer, even though there was no contract between the parties, where
negligence allowed the snail to enter the bottle. Lord Atkin enunciated the
neighbour principle:
“You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbor.”
Who then is your neighbor?
“Persons who are so closely and directly affected by one’s act that one ought
reasonably to have them in contemplation.”

FALSE IMPRISONMENT AND MALICIOUS
PROSECUTION
WHAT IS FALSE IMPRISONMENT ?
 False Imprisonment may be defined as an act of the defendant which
causes the unlawful confinement of the plaintiff. To constitute false
imprisonment certain factors such as probable cause for imprisonment,
knowledge of the plaintiff for imprisonment, intention of the defendant
while causing imprisonment and period of confinement matters.

• Essential Elements of False
Imprisonment
• Period of Confinement
• The Intention Factor
• Knowledge of the Plaintiff
• Place of Confinement
• Defences to False
Imprisonment
• volenti non fit injuria
• Consent:
• Probable Cause

MALICIOUS PROSECUTION
 When some body sue against an innocent man, file a criminal case, and it is
proved that the case in vague. Then it may be called malicious prosecution.
The intentional "dignitary" tort of malicious prosecution may be brought by
someone against whom a criminal or civil action has proceeded without
probable cause and with malicious intent. EXAMPLE;
When a defendant admitted that he did not know who actually stole his
property, that admission proved he had the plaintiff arrested for an improper
motive, leading to a successful malicious prosecution claim.

• The institution or continuation of a civil or criminal legal proceeding
against the plaintiff
• By, or abetted by, the defendant (the prosecutor or plaintiff in the
malicious action);
• Termination of the prior proceeding in favor of the plaintiff (for
instance, the case was dismissed);
• Absence of probable cause for instituting the prior proceeding;
• Malice as the primary purpose for the prior action; and
• Injury or damage to the plaintiff as a result of the prior action.
THE ELEMENTS OF A MALICIOUS PROSECUTION CLAIM

No. False imprisonment Malicious prosecution
1) It is not necessary to
prove malice.
It is necessary to prove malice.
2) It is not necessary to
absence of a reasonable
or probable cause.
It must be proved that the Criminal
Proceedings were made without reasonable
and probable cause.
3) Mistake of fact would
not be a good defense.
Mistake may be a good defense
4) It is a tort against liberty
of movement.
It is a tort against right not to be harassed by
prosecution.
5) Actual damage need not
be proved. It is
actionable per se.
Actual damage has to be proved. It is not
actionable per se.

NUISANCE
• The word 'nuisance' is derived from the French word 'nuire' and the Latin
word 'nocere' which means to do hurt or to annoy. Nuisance is an injury to
the right of a person in possession of property to undisturbed enjoyment of
it and results from an improper use by another person of his own property.
• Nuisance is classified into two: Private and Public nuisance
WHAT IS PRIVATE NUISANCE ?
• A Private nuisance is a continuous, unlawful and indirect interference
with the use or enjoyment of land, or of some right over or in connection
with it.
.

.Lord Lloyd in Hunter v Canary Wharf [1997] 2 All ER 426, stated that
private nuisances are of three kinds. They are;
• nuisance by encroachment on a neighbour's land;
• nuisance by direct physical injury to a neighbour's land; and
• nuisance by interference with a neighbour's quiet enjoyment of his land.
• Remedies for private nuisance
a) abatement
b) damages
c) injunction

REQUIREMENTS
1.CONTINUOUS INTERFERENCE -- There must be a continuous interference
over a period of time with the claimant's use or enjoyment of land.
2.UNLAWFUL INTERFERENCE/UNREASONABLENESS -- The claimant must
prove that the defendant's conduct was unreasonable, thereby making it unlawful.
The rule is sic utere tuo ut alienum non laedas (So use your own property as not to
injure your neighbour's).
 The court will take the following factors into account in assessing the
reasonableness or otherwise of the defendant's use of land:
a. The locality d. the state of the defendants land
b. Sensitivity of the claimant e. malice
c. the utility of the defendants conduct

The court will take the following factors into account in assessing the
reasonableness or otherwise of the defendant's use of land:
a. The locality d. the state of the defendants land
b. Sensitivity of the claimant e. malice
c. the utility of the defendants conduct
3. INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND OR
SOME RIGHT OVER OR IN CONNECTION WITH IT --- The
claimant must usually prove damage, ie physical damage to the land
itself or property; or injury to health, such as headaches caused by
noise, which prevents a person enjoying the use of their land.

. WHAT IS PUBLIC NUSIANCE?
• public nuisance is an act affecting the public at large, or some
considerable portion of it, and must interfere with rights which
members of the community might otherwise enjoy.
• Public nuisance does not create a civil cause of action for any
person. In order that an individual may have a private right of
action in respect of a public nuisance, the following must be proved.
• he must show a particular injury to himself beyond that which is
suffered by the rest of public.
• such injury must be direct and not a mere consequential injury.
• the injury must be substantial character.

NERVOUS SHOCK
• Nervous shock denotes psychiatric illness or injury caused to a person by
the perception of acts caused due to the negligence of another, for example,
by witnessing injury caused to one’s children.
• To claim damages for nervous shock, the damage suffered by the plaintiff
must not be mere emotional distress of suffering. It must amount to a
recognized mental illness like psychotic neurosis or anxiety disorders,
schizophrenia etc.

ESSENTIAL ELEMENTS:
The plaintiff must perceive a ‘shocking event’ with his own ‘unaided senses’
i.e., without any via media like television, e-mail, etc; or he must view the
immediate aftermath of the accident.
The claimant must have a ‘sufficiently proximate’ relationship with the
victim of the defendant’s negligence. For example, relationships of spouses,
parents and children and siblings are included. Claims by bystanders are
generally ruled out.
It must be reasonably foreseeable that psychiatric harm to the claimant could
be caused. The closer the ties between the claimant and the victim of the
accident, the more the likelihood of psychiatric harm

UNIT -3

WHAT IS VICARIOUS LIABILITY
 Generally, a man is liable for his own wrongful acts. He is not liable for
the wrongful acts done by others. But under certain circumstances, i.e.,
tortious acts, a man may be held liable for the wrongful acts of others. This
is popularly known as “Vicarious Liability”.
Examples:
 1. Liability of the principal for the tort of his agent.
 2. Liability of the partners for each other’s tort.
 3. Liability of the master for the tort of his servant.

 Vicarious Liability is unknown to Criminal Law”: It is the concept
of the punishment and criminal law. It is in the law. It is in the interest
of public safety. The object of punishment is twofold:
i) Prevention of offences; and
ii) Protection of the society
 Three questions must be asked in order to establish liability:
(1)Was a tort committed?
(2) Was the tortfeasor an employee?
(3) Was the employee acting in the course of employment when the
tort was committed?

REASONS FOR VICARIOUS LIABILITY
1)The master has the 'deepest pockets'. The wealth of a defendant, or the
fact that he has access to resources via insurance, has in some cases had an
unconscious influence on the development of legal principles.
2) Vicarious liability encourages accident prevention by giving an
employer a financial interest in encouraging his employees to take care for
the safety of others.
3) As the employer makes a profit from the activities of his employees, he
should also bear any losses that those activities cause.

STRICT LIABILITY
• Strict liability is the principle which evolved from case of Rylands v.
Fletcher in the year 1868. This principle clearly states that a person who
keeps hazardous substances in his premises, is responsible for the fault if
that substance escapes in any manner and causes damages.
• This principle stands true if there was no negligence on the side of the
person keeping it and the burden of proof always lies on the defendant to
prove how he is not liable.

RYLANDS V. FLETCHER
• FACTS: There were two men living next to each other, Rylands and Fletcher.
Fletcher owned a mill for whose energy requirement; he constructed a water
reservoir on his land. To get this work done, he had hired independent
contractors and engineers. There were old unused shafts under the site of the
reservoir which the engineers didn’t notice and thus did not block them. Due to
the negligence of the contractors, the shafts that led way to Rylands land burst
when water was filled in the reservoir. This caused huge damage and loss to
Ryland as the water entered into his coal mine. Thus, Ryland filed a suit against
Fletcher.

• ISSUES: The issue was very concise and straight. Can the defendant be
held liable for the act of someone else due to which an entity on his land
escapes without his negligence or intention? The defendant took the
defence that that it was not his fault but the contractor. His being liable for
the damage, the cause of which was unknown to him was not acceptable to
him.
• JUDGMENT: The house of the Lords rejected the plea of the defendant
and claimed him to be liable for all the damages to Rylands.

ESSENTIALS OF STRICT LIABILITY
• Dangerous Thing -- This simply means that the defendant will be liable for
the damages only when the thing that escaped from his premises was a
dangerous thing.
• Escape -- It is also essential that the thing causing harm must escape from the
premises of the defendant. It should not be within the reach of the defendant
after its escape.
• Non-Natural Use of Land --In the landmark case, the water collected
constituted the non-natural use of land. Keeping water for domestic purposes is
natural use but keeping water for use in the mill is non-natural use of land.

EXCEPTIONS TO THE RULE OF STRICT
LIABILITY
• Plaintiff’s Own Fault
• Act Of God
• Consent Of The Plaintiff
• Act Of Third Party
• Statutory Authority

ABSOLUTE LIABILITY
• According to the rule of absolute liability, if any person is engaged in an
inherently dangerous or hazardous activity, and if any harm is caused to
any person due to any accident which occurred during carrying out such
inherently dangerous and hazardous activity, then the person who is
carrying out such activity will be held absolutely liable.
• In India, the rule of absolute liability evolved in the case of MC Mehta v
Union of India
• Absolute liability = Strict liability - Exception.

• The exception to the strict liability rule also wouldn’t be considered. The
rule laid down in the case of MC Mehta v UOI was also followed by the
Supreme Court while deciding the case of Bhopal Gas Tragedy case. To
ensure that victims of such accidents get quick relief through insurance, the
Indian Legislature passed the Public Liability Insurance Act in the year
1991.
• The facts of the case are that some oleum gas leaked in a particular area
in Delhi from industry. Due to the leakage, many people were affected. The
Apex Court then evolved the rule of absolute liability on the rule of strict
liability and stated that the defendant would be liable for the damage caused
without considering the exceptions to the strict liability rule.

DEFAMATIONS
• A defamatory statement is one which injures the reputation of another by
exposing him to hatred, contempt, or ridicule, or which tends to lower him
in the esteem of right-thinking members of society.
DISTINCTION BETWEEN LIBEL AND SLANDER
• Libel is a defamatory statement in permanent form,, whereas, Slander is a
defamatory statement in a transient form.
• Libel is actionable per se whereas damage must be proved for slander,
• Libel may be prosecuted as a crime as well as a tort, whereas slander is
only a tort.

WHAT HAS TO BE PROVED
• that the statement was defamatory,
• that it referred to plaintiff, and
• that it was published, ie communicated, to a third party.
INNUENDO
Sometimes a statement may not be defamatory on the face of it but
contain an innuendo, which has a defamatory meaning. Such a
statement may be actionable. The hidden meaning must be one that
could be understood from the words themselves by people who knew
the claimant (Lewis v Daily Telegraph [1964] AC 234) and must be
specifically pleaded by the claimant.

DEFENCES:-
• TRUTH (OR JUSTIFICATION)
• FAIR COMMENT ON A MATTER OF PUBLIC INTEREST
• PRIVILEGE :-
(a) Absolute
(b) Qualified

UNIT - 4

THE CONSUMER PROTECTION
ACT, 1986

INTRODUCTION
 The Consumer Protection Act 1986 was enacted for better protection of the
interest of consumers. The provision of the act came into force from 15-04-
1987. Consumer Protection Act imposes strict liability on a manufacturer,
in case of supply of defective goods by him and a service provider in case
of deficiency in rendering of his services.
 On 24 December 1986 Govt. of India Enacted the Consumer Protection
Act 1986 to:
• Ensure Rights of Consumers
• Provide Remedies for deceived Consumers

SOME IMPORTANT TERMS
• Consumer:- “ Any person “ who hiresavails of any services for a
consideration which has been paid.
• Complaint:- A consumer or one or more consumers having the same
interests who or which makes a complaint or any consumer association
registered under the Consumer Protection Act 1986.
• Deficiency:- Any fault, imperfection or inadequacy in the quality and
manner in the performance which is required to be maintained under any
law, by a person in pursuance of a contract or otherwise in relation to any
service

SALIENT FEATURES OF THE ACT
• It covers all the sectors whether private, public and co-operative or any
person
• The provisions of act are compensatory as well as preventive and
punitive in nature.
• ACT applies to all goods and services unless specifically exempted by the
central govt.
• It protects the following rights of consumers:-
• Right to be protected against the marketing of goods and services which
are hazardous to life and property.

• Right to be informed about the quality, quantity, potency, purity and
price of goods and services so as to protect the consumers against unfair
trade practices.
• Right to be heard and to be assured that consumers interests will receive
due consideration.
• Right to seek redressal against unfair trade practicesexploitation of
consumers.
• Right to consumer education.

PROCEDURE TO FILE A COMPLAINT
• A Complaint is only admitted by any of the competent forums under CPA
if it is filed with in two years.
• The Complaint must be made in writing , defects in goods or
unsatisfactory services can be the subject of written complaints.
• Consumers are not charged a fee for filing such Complaints.
• Decisions may involve complete removal of any defect in a product and
replacement of the product.
• Refunds are specifically provided for in the law

CONSUMER PROTECTION REDRESSEL
AGENCIESLEVELS
• Under a three tire redressel machinery and under section 9, the settings of
judicial redressal mechanism which is as follows:-
(i) District forum
(ii) State forum
(iii) National forum

DISTRICT FORUM
• District forum is established by the state govt. in each district. It has three
members:-
• Qualified district judge (President)
• A person of eminence in the field of education, commerce
• A lady (social workers)District forum deals with the compensationclaims
upto 5 lakhs

STATE COMMISSION
• It is at state level.it has four members:-
• A person who is judge of High court(President)
• Two person of eminence in education, administration, adequate
knowledge of laws and public affairs
• A female member (social worker) State commission deals with the
compensation/claim from 5 lakh to 20 lakhs.

NATIONAL LEVEL
• It is situated at New Delhi. It consists of five members:-
(a) Judge of Supreme court
(b) Four other members belong to trade, industry, law, administration
(c) One woman is also compulsory.
• A person ordered by state commission may appeal to National
commission in 30 days.
• National Commission deals with the compensation above 20 lakhs.

PENALTY UNDER SECTION OF CPA
• The objective of CPA is to protect and promote the interests and rights of
consumers. To meet the demand of consumers, the consumer courts are
established at district level, state level and national level.
• According to CPA, where a trader or complaint fails to comply with an
order made by relevant consumer forum, such person are liable to a
punishment with imprisonment for a term which is not less than one month
but it may extend to three years, OR
• Fine of not less than 2000 rupees, but which may extend to Rs. 10,000
• Punishment may be single or it may be both, imprisonment with fine.

WHAT ARE THE RIGHTS OF A CONSUMER?
• Right to consumer education and to update ourselves with all the new
schemes launched by the government.
• Right to be heard in the consumer forum.
• Right to be protected and seek redressal against traders using unfair
means and unfair practices.
• Right to have access to a variety of goods at fair prices.
• Right to be safe from hazardous goods.

WHAT ARE THE DUTIES OF A CONSUMER?
• Duty to pay for the services or goods purchased or used.
• To check weights, balances, prices etc. and read the labels carefully.
• To update oneself about the various schemes of consumer protection.
• Duty not to fall in the trap of misleading information and advertisements.
• To be an ethical consumer and procure the bills, receipts etc. for the good
and services purchased. If a consumer fails to take them then he/she might
find it difficult to file a complaint and prove the defect in the good.

• Duty to gain knowledge about consumer rights and duties and to
spread awareness about the same.
• Duty to file a complaint in case there is a defect in the good or
service so purchased.

THANK YOU

History II

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History II