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Additional week 2.pptx

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Additional week 2.pptx

  1. 1. LIABILITY BASED ON FAULT AND STRICT LIABILITY Mohd Imran
  2. 2. General Conditions of Liability for a Tort • A liability based on 'fault' implies that the defendant is liable because of harms caused with an intention or negligence on his part. • A 'strict' liability makes the defendant liable for accidental harms caused without any intention and negligence on his part (`no fault' liability.) • In general, a tort consist in some act done by the defendant whereby he has without just cause or excuse caused some form of harm to the plaintiff. • The fundamental principle of this branch of the law is alterum non leadere- to hurt nobody by word or deed. • An action of tort is usually a claim for pecuniary compensation in respect of damage suffered as the result of the invasion of a legally protected interest. • However, the law of tort fails to provide adequately for the injury other the physical, done maliciously or carelessly
  3. 3. General Conditions of Liability for a Tort • In order to constitute a tort, the following conditions are to be satisfied: (1) There must be a wrongful act or omission on the part of the defendant (2) Such act or omission should result in legal damage (injuria) to the plaintiff (3) Some legal remedy in the form of an action for damages must be available. ( I ) Act or Omission • In order to make a person liable for a tort he must have done some legal wrong i.e., violates the legal rights of another person (committing the act of trespass or defaming a person. • The wrongful act, if merely a moral or social wrong, will not amount to a tort e.g., failing to help a starving man or saving a drowning child. • The wrongful act also includes omission to perform a legal duty.
  4. 4. General Conditions of Liability for a Tort • (2) Legal Damage • The test to determine the liability under the law of torts is to see whether any legal right of the plaintiff has been violated or not. • If a legal right is violated, then it does not matter that the plaintiff has suffered any loss or not. • The term 'injuria' refers to infringement of a legal right and the term 'damnum' means substantial harm, loss or damage. The term 'sine' means without. • Injuria sine damnum • This maxim means violation of a legal right without causing any harm, loss or damage • to the plaintiff. • It is the behaviour, which is actionable as a tort. It is always actionable as legal wrongs entail a remedy. Every injury imports damage. Generally, the court awards nominal damages.
  5. 5. General Conditions of Liability for a Tort • Torts are of two kinds — namely, those, which are actionable per se, and those, which are actionable only on proof of actual damage resulting from them. • Thus, the act of trespassing is actionable even though the plaintiff has not suffered any harm. • Similarly, a libel is actionable per se, while slander (i.e., oral as opposed to written defamation) is not actionable without proof of actual damage. • In Ashby v While (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 inspite of that. The defendant was held liable. • In Bhim Singh v State of J & K (AIR 1986 SC 494), the petitioner, an M.L.A. of J & K Assembly, was wrongfully detained by the police. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. 50,000 by way of consequential relief.
  6. 6. General Conditions of Liability for a Tort • Damn um sine injuria • It means that the plaintiff may suffer actual or substantial loss without any violation or infringement of legal right and therefore no action lies in such cases. • This is generally so when the exercise of legal right by one results in consequential harm to the other, even though the injury is intentional. It is never actionable. • There are many forms of harm of which the law takes no account: (i) Loss inflicted on individual traders by competition in trade. (ii) Where the damage is done by a man acting under necessity to prevent a greater evil. (iii) Damage caused by defamatory statements made on a privileged occasion. (iv) Where the harm is too trivial, too indefinite or too difficult of proof. (v) Where the harm done may be of such a nature that a criminal prosecution is more appropriate e.g., in case of public nuisance or causing of death. (vi) There is no right of action for damages for contempt of court.
  7. 7. General Conditions of Liability for a Tort • In Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen, the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition the plaintiffs had to reduce their fees. Held that the plaintiffs had no remedy for the loss thus suffered by them. • Similarly, in Mogul Steamship Co. v McGregor Gow & Co. (1892) A.C. 25, a number of Steamship companies combined and drove the plaintiff's company out of trade by offering reduced freight. Held that the plaintiff had no cause of action as the defendants had only used lawful means to protect and extend their trade and increase their profits. • The case of Chesmore v Richards (1859) 7 HCL 349, shows that if a man has the misfortune to lose his spring by his neighbour digging a well, he must dig his own well deeper.
  8. 8. General Conditions of Liability for a Tort • Similarly, in Acton v Blundell (1848) 12 M & W 324, the defendants by digging a coal pit intercepted the water which affected the plaintiff's well less than 20 years old, at about one mile. Held, they were not liable. • In Dickson v Reuter k Telegram Co. (1877) 3 C.P.D. I, the defendants were held not liable even though their negligence had caused damage to the plaintiff. • A sent a telegram to B for the shipment of certain goods. The telegram co. by a mistake delivered the telegram to C. C acting on the telegram sent the goods to A who refused to accept the goods stating that he had ordered the goods not from C but from B. Held that C had no cause of action against the company for the company did not owe any duty of care to C and no legal right of C could, therefore, be said to have been infringed.
  9. 9. General Defences: Avoidance of Liability in Tort • In an action for a tort, the defendant may avoid his liability by taking the plea of some defence. There are some general defences, which may be taken against action for a number of wrongs. (I) Volenti non fit injuria (Leave and Licence) • Everyone is the best judge of his interest and therefore the one who voluntarily agrees to suffer harm is not allowed to complain about that and one's consent is a good defence against oneself. • This is so because the harm voluntarily suffered does not constitute the legal injury. No man can enforce a right, which he has voluntarily waived or abandoned. • Consent to suffer the harm may be express or implied. • An example of express consent is submitting to a surgical operation. An example of implied consent is where a player or a spectator in the game of cricket or football is deemed to be agreeing to any hurt, which may be likely in the normal course of the game.
  10. 10. General Defences: Avoidance of Liability in Tort • In Hall v Brooiclands Auto Racing Club (1931) 1 K.B. 205, the plaintiff was a spectator at a motorcar race. During the race, there was a collision between two cars, one of which was thrown among the spectator, thereby injuring the plaintiff. Held that the duty towards spectator Was the duty of care rather than the duty of skill. • Thus, error of judgment or lapse of skill on the defendant's part will not make him liable in a horse show [Woolridge v Summer (1963) 2 QB 43]. • In Padmavatl v Dugganaika (1975) 1 Karnt. L.J. 93, while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and one of them died. Held that neither the driver nor the master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep.
  11. 11. General Defences: Avoidance of Liability in Tort • Essential Conditions of a Defence of Consent (i) Free consent- The consent must not have been induced by fraud, compulsion, coercion, undue influence, misrepresentation, mistake. etc. Moreover, the act done by the defendant must be the same for which the consent is given. When a person is incapable of driving his consent because of his insanity or minority, consent of such person's parents or guardian is sufficient. (ii) Knowledge- Knowledge of a danger or risk is not the same thing as the consent to bear the danger. In order to avail knowledge as a defence, it is necessary first to prove that the plaintiff was aware of the risk and second that he, knowing the same, agreed to suffer the harm. Thus, mere knowledge of the risk (Scienti non fit injuria) is not enough. It is not correct to say that no injury is done to one who knowingly does an act.
  12. 12. General Defences: Avoidance of Liability in Tort • In Cutler v United Dairies (London) Ltd. (1953) 2 K.B. 297, the driver of a cab with restive horses cried for help. The plaintiff went and attempted to hold the horse, but it threw him on the ground causing him injuries, in respect of which he sued the defendant. Held that the plaintiff has no right of action, as he must have known that his attempt to hold the horse was attendant with risk, and therefore, the maxim volenti non fit injuria applied. • In Bowater v Rowley Regis Corpn. (1944) K.B. 476, the plaintiff, a cart driver was asked by the defendant's foreman to drive a horse, which to the knowledge of both’, was liable to bolt. The plaintiff protested, but ultimately took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held, the maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover. • In Baker v T.E. Hopkins & Son (1959) 3 All E.R. 255, due to the employer’s negligence a well was filled with poisonous fumes of a petrol driven pump and two of his workmen who were reconstructing the well were overcome by fumes. Dr. Baker entered the well despite the risk with the view to help the two workmen, however fumes too overcame him. Held, the maxim does not apply. The defendants were liable.
  13. 13. General Defences: Avoidance of Liability in Tort • In Videan v British Transport Commission (1963) 2 Q.B. 650, held that the defendant is liable to both the victim and rescuer. The right of the rescuer is independent of that of the victim. Further, the' right of the rescuer is not affected by the defenses, which may be pleaded against the victim e.g. contributory negligence of the victim (when a person by his negligence puts himself in danger and thus rescued by another person). • The rule in Haynes v Harwood also applies in cases of rescue of property.
  14. 14. General Defences: Avoidance of Liability in Tort (2) Plaintiff the Wrongdoer • The mere fact that the plaintiff himself is the wrongdoer does not disentitle him from recovering the loss, which he suffers, unless some unlawful act or conduct of plaintiff is connected with the harm suffered by him as part of the same transaction. • In Bird v Holbrook (1828) 4 Bing. 628, held that the trespasser on the defendant’s land is entitled to claim compensation for the injury caused by spring guns set by the defendant without notice in his garden. I f the owner of the house deliberately throws stones on a trespasser to his land he will be liable for the throwing of stones although he can bring action against the trespasser for the trespass. (3) Inevitable Accident • It means an unexpected injury, which could not have been, avoided inspite of, reasonable care on the part of the defendant. It is important to note that this defence is available only if the accident occurs during the prosecution of a lawful act and not when the act done is unlawful.
  15. 15. General Defences: Avoidance of Liability in Tort • If A fires at a bird but the pellet from the gun strikes a tree and rebounds and injures B in a different direction, A can take the defence of inevitable accident [Stanley v Powell (1891) 11 Q.B. 86]. Similarly, if the driver is not able to control the horses, which are startled by a barking dog, and the plaintiff is thereby injured, the defendant will not be liable [Holmes v Mather (1857)1. (4) Act of God- vis Major • Pollock defines the Act of God as- "an operation of natural forces so unexpected to anticipate it." Act of God is also known as vis major in Latin. • It may be noted that the expression force majeure is not a mere French version of the act of God; it is a term of wide import and includes act of God, war, riot, strike, earthquake, storm, flood, fire, etc. The expression "force majeure" (literally "superior force") means irresistible force or compulsion or circumstances beyond one's control (such clause is common in a construction contract).
  16. 16. General Defences: Avoidance of Liability in Tort Two important essentials are needed for the defence of act of God: • (i) There must be working of natural forces (like exceptionally heavy rainfall, storms, tempests, earthquakes, tides and volcanic eruptions) without any human intervention. • (ii) The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against. • Act of God is a kind of inevitable accident with the difference that it does not incorporates any human intervention. • Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both, but it is only those acts which can be traced to natural forces, and which have nothing to do with the intervention of human agency that could be said to be acts of God. • The rule of strict liability (rule in Rylands v Fletcher) also recognizes act of God to be a valid defence for the purpose of liability under that rule.
  17. 17. General Defences: Avoidance of Liability in Tort (5) Private Defence • Private defence is a good ground to negative a tortious liability. The law permits the use of reasonable force to protect one's person or property. For this, the following conditions have to be satisfied- (i) there was an imminent and immediate danger, (ii) the force employed was not out of proportion, and (iii) the force is employed only for the purpose of defence. • The force should not be used by way of retaliation after the danger is over. Further, a clear notice (warning of danger) must be put up. • Fixing of broken glass or spikes on a wall or keeping of a fierce dog can be justified for the protection of the property but fixing up of spring guns without any warning to a trespasser (Bird v Holbrooke and hot v Wilkes), or live electric wire to keep the trespassers away (Cherubin Gregory v State of Bihar AIR 1964 SC 205), cannot be justified.
  18. 18. General Defences: Avoidance of Liability in Tort (6) Mistake • Mistake, whether of fact or law, is generally no defence to an action of tort. Entering the land of another thinking that to be one's own is trespass, driving of plaintiff’s sheep amongst one's own herd is trespass to goods, injuring the reputation of another without an intention to defame is defamation. However, in torts requiring malice, such as the wrong of malicious prosecution and deceit the liability does not arise when the defendant acts under an honest and mistaken belief. (7) Necessity • An act causing damage, i f done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. Throwing goods overboard a ship to lighten it for saving the ship or person on board the ship, or for a competent surgeon to perform an operation on an unconscious person to save his life, are the examples of necessity.
  19. 19. General Defences: Avoidance of Liability in Tort (8) Statutory Authority • This defence is founded on the principle that the law, which recognizes a right, can abolish it, modify it and regulate it. • Thus, the damage resulting from an act, which the legislature authorizes or directs to be done, is not actionable even though it would otherwise be a tort. • This defence has its most important application in actions of nuisance viz. if a railway line is constructed, there may be interference with private land or the running of train may cause harm due to noise, smoke, etc. • In Vaughan v Taff Vale Rail Co. (1860) 5 H & N 679, sparks from an engine of the respondent rail company set fire to the appellant's woods on the adjoining land. Held that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than what the statute had authorized them to do, they were not liable.
  20. 20. General Defences: Avoidance of Liability in Tort • Where an act authorized by the legislature is done negligently, than an action lies. • In Smith v London & Southwestern Railway Co. (1870) L.R. 6 C.P. 14, the servants of a Railway Co. negligently left trimmings of grass and hedges near a rail line. Sparks from an engine set the material on tire. By a heavy wind the fire was carried to the nearby plaintiff's cottage, which was burnt. Since it was a case of negligence on the part of the Railway Co., they were held liable. • In Metropolitan Asylum District v Hill (1881) 6 A.C. 193, a local authority, having statutory authority to erect a smallpox hospital, was restrained from erecting one in a place in which it would have been a source of danger to the residents of the neighbourhood. This statutory authority was construed, not as an absolute authority to erect a hospital where the defendants pleased, and whether a nuisance was thereby created or not, but as conditional authority to erect one if they could obtain a suitable site where no nuisance would result.
  21. 21. Strict Liability • Simply stated the rule of strict liability makes the defendant liable for accidental hams caused without any intention and negligence on his part. • In other words, sometimes the law recognizes 'no fault' liability. • The basis of liability is the foreseeable risk inherent in the very nature of the activities. In this respect, principle of strict liability resembles negligence, but differs, as here the defendant would be liable even if he could not by reasonable care have avoided the damage. • The rule laid down in Rylands v Fletcher is called the rule of strict liability (it is not called the rule of 'absolute liability' because of the various exceptions to it). • The rule laid down in MC. Mehta's case is called the rule of absolute liability i.e., stricter than strict liability (as it do not recognize any exceptions). • The basis of liability was laid down by Blackburn J. in these words: "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 risk; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape." • Thus, a man acts at his peril and is the insurer of the safety of his neighbour against accidental harms.
  22. 22. Strict Liability

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