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Tort Lecture 1
Tort Lecture 1
WHAT IS A TORT?
THANK YOU
DIFFERENCE BETWEEN TORT AND CRIME
Difference between Tort and Crime can be clearly
understood by following points-
CRIME
TORT
• PUBLIC WRONG
• PRIVATE WRONG
• MENS REA
• MENS REA NOT
NECESSARY • THE CASE IS FOR
PUNISHMENT
• THE SUIT IS FOR DAMAGES
• COMPOUNDING NOT
• COMPOUNDING POSSIBLE
POSSIBLE
• NOT CODIFIED
• CODIFIED
DIFFERENCE BETWEEN TORT AND CONTRACT
Difference between Tort and Contract can be clearly
understood by following points-
• The member was deprived of his constitutional right to attend the assembly
session and it was also the violation of Art 21 personal liberty.
• Human mind is fallible and it is not possible that there might not be a lapse
at any stage.
• Further section 67 deals with publication of obscene material and provides for
imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs.
• in Rindos v. Hardwick.
an anthropologist was denied tenure at the University of West Australia, A rival
anthropologist, Hardwick, posted a statement supporting the university’s
decision and accusing Rindos of sexual deviance and of research detrimental to
the aboriginal people of Australia.
60
Consent to suffer the harm may be express or implied. It can be inferred from
the conduct of the parties.
Express Consent
When you send an invitation card and invite somebody to your house, you
cannot sue him for trespass; or When you submit yourself for surgical
operation, you cannot sue the hospital authorities for doing the same.
Implied Consent
A player in the games of cricket, hockey, rugby or boxing is deemed to be
agreeing to any hurt which may be likely in the normal course of the game.
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ESSENTIALS
• Knowledge of risk is not the same thing as consent to run the risk.
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A. CONSENT MUST BE FREELY GIVEN
• The plaintiff was a spectator at a motor car race being held at Brooklands on a
track owned by the defendant company.
• During the race, there was collision between two cars, one of which was
thrown among the spectators, thereby injuring the plaintiff.
• It was held that the plaintiff impliedly took the risk of such injury, the danger
being inherent in the sport which any spectator could foresee, the defendant
was not liable.
64
Arthur v. Anker, [1996] 3 All ER 783, [1997] QB 564
A motorist, who parked his car on his private land after having been given
notice that the landowner objected and might clamp his wheels, was deemed
to have consented when this occurred.
65
Vine v. London Borough of Waltham Forest [2000] 4 All ER 169
• A car driver felt sick, turned hurriedly into a private car park, got out and was
sick a shot distance away. She returned to find the car wheels clamped. There
was a warning notice, but it was partly obscured by another vehicle. She
recovered damages because she had not consented to the risk of clamping.
66
Murray v. Harringay Arena Ltd [1951] 2 All ER 320
The defendants were held not liable where a young spectator was struck in the
eye by a hockey puck.
67
B. CONSENT CANNOT BE GIVEN TO AN ILLEGAL ACT
• Fighting with naked fists, duel with sharp swords are unlawful and
even though the parties may have consented, yet the law will
permit an action at the instance of the plaintiff.
68
C. KNOWLEDGE OF RISK IS NOT THE SAME THING AS CONSENT TO RUN
THE RISK
• In this case, the plaintiff working a drill for cutting a rock. And by the help of
crane, stones were being conveyed from one place to another by passing over
the head of plaintiff.
• Both he and employers knew that there was a risk of stones falling, but no
warning was given to him of the moment at which any particular jibbing
commenced.
• A stone from the crane fell upon him and injured. The House of Lords held
that defendants were liable. 69
EXCEPTION TO THE RULE
• Rescue Cases
• Doctrine of assumption of risk does not apply where plaintiff has under an
exigency caused by defendant’s wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent
danger of personal injury or death, the defence of leave and licence is not
applicable to the plaintiff, whether the person endangered was one to whom
he owed a duty of protection as a member of his family, or was a mere
stranger to whom he owed no such duty.
70
• Haynes v. Harwood, (1935) 1 KB 146
• It was held:
• That he was entitled to recover damages, as the defendant was grossly
negligent, and
• That the defence of Volenti non fit Injuria was held not to apply to the rescue
cases, the act of a third party also intervening and the voluntarily undertaking
the risk by the plaintiff were not open to the defendant. 71
• Dr. J N Srivastava v. Ram Bihari Lal and Others, AIR 1982 M.P. 132
72
• Baker v. T.E. Hokins and Sons, (1959) 1 WLR 966
• A well was filled with poisonous fumes of a petrol driven pump on account of
negligence of the employer, as a result of which two workmen were
overcome by fumes. Dr. Baker was called to rescue their lives but he was told
not to enter the well in view of the risk involved. Still he preferred to enter
the well with a view to save their lives. In the attempt of saving them he
himself was overcome by the fumes and he died.
• The widow of Dr. Baker sued the employer to claim compensation for her
husband’s death. The defendants pleaded Volenti non fit Injuria.
• It was held that the act of rescuer was the natural consequence of the
defendant’s negligent act which he could have foreseen and therefore, the
defence of Volenti non fit Injuria did not apply. The defendants were,
73 thus,
held liable.
DISTINCTION BETWEEN VOLENTI NON FIT INJURIA &
CONTRIBUTORY NEGLIGENCE
• In case of Volenti Non Fit Injuria, the plaintiff is always aware of the nature
and extent of the danger which he encounters, while it is not so in case of
Contributory negligence.
76
The essential conditions of this defence are:
77
• Nicholas v. Marshland, (1875) 2 KB 297
• It was held that the defendant was not negligent and the accident was
due to an act of God.
78
Ramalinga Nadar v. Narayan Reddiar, 1971
79
Kallu lal v. Hemchand, 1958
80
INEVITABLE ACCIDENT
• A. Krishna Patra v. Orissa State Electricity Board, AIR 1997 Orissa 109
• The plaintiff, who was engaged in carrying cartridges and game for the
party, was hit by a shot fired by the defendant while on an organised
pheasant shoot when the shot glanced off a tree before hitting the
plaintiff.
82
• National Coal Board v. Evans, (1951) 2 KB 861
• It was held that in these circumstances, neither the council nor the
contractor would be liable for damage of cable and the defence of
inevitable accident was allowed.
83
• Padmavati V. Dugganika, 1975
84
Plaintiff the wrong doer
• What it means?
85
Plaintiff the wrong doer
86
Plaintiff the wrong doer
• It was held that mere fact that the plaintiff was also at fault does
not disentitle him from recovering from the defendant’s wrongful
act.
87
Plaintiff the wrong doer
88
Plaintiff the wrong doer
89
Plaintiff the wrong doer
90
Thank you
91
NECESSITY
One arresting and restricting the movement of the drunken person who is
likely to cause danger to the people at large, can successfully plead necessity
as a defence.
However, one who puts live electric wires on his land to stop the trespassers
cannot successfully avail this defence if he does not give notice, warning of
such dangerous thing.
93
Cope v. Sharpe, (1912)
defendant entered into plaintiff’s land to prevent the fire from spreading to
adjoining land over which the defendant’s master was having shooting rights.
The Court held that the gamekeeper was not liable for there was a real and
imminent danger to the game which justified the action taken by the
defendant.
94
LIMITS OF THE DEFENCE OF NECESSITY
The Supreme Court held that “under the law of tort necessity is a plausible
defence, which enables a person to escape liability on the ground that the
acts complained of are necessary to prevent greater damage, inter alia, to
himself. So the trespass on some property cannot be justified always on the
basis of necessity.
96
Illustration:
A, in a great fire, pulls down houses in order to prevent the conflagration
from spreading. He does this with the intention in good faith of saving human
life or property.
Here, if it be found that the harm to be prevented was of such a nature and
so imminent as to excuse A’s act, A is not guilty of the offence.
97
Dhania Daji, (1868) 5 BHC (CrC) 59
A person placed poison in his toddy pots, knowing that if taken by a human
being it would cause injury, but with the intention of thereby detecting an
unknown thief who was in the habit of stealing the toddy from his pots. The
toddy was drunk by and caused injury to some soldiers who purchased it from
an unknown vendor.
It was held that the person was guilty under section 328 (causing hurt by
means of poison or any stupefying, intoxicating or unwholesome drug or
other thing with intent to commit an offence), and that section 81 did not
apply.
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PRIVATE DEFENCE
In other words, no action is maintainable for damage done in the exercise of
one’s right of private defence of person or property provided that the force
employed for the purpose is not out of proportion to the harm apprehended.
99
PRIVATE DEFENCE
It was held that the defendant’s action was justifiable and the owner of the
stallion was not entitled to any damages.
101
Morris v. Nugent, (1836) 7 C & P 572
The defendant was passing by the plaintiff’s house. The plaintiff’s dog ran
out, and bit the defendant. On the defendant’s turning round, raising his gun,
the dog ran away and he shot the dog as it was running away.
It was held that the defendant was not justified in doing so. To justify the
shooting of the dog, he must be actually attacking the party at the time.
102
Cook v. Beal, 1667
It was observed that if A strikes B, B can not justify drawing of sword and
cutting off his hands. Because it is an excessive use of force.
103
Ramanuja Mudali v. M. Gangan, AIR 1984
the plaintiff used to pass through the defendant’s land to reach his land.
the defendant laid some electric wires on his land.
Not intimated to plaintiff.
plaintiff while crossing got shock.
The defendant was held liable.
104
Sections 96-106 of the Indian Penal Code
As per section 96 IPC nothing is an offence which is done in the exercise of the
right of private defence.
As per section 96 IPC nothing is an offence which is done in the exercise of the
right of private defence.
The general rule is that mistake, whether of the law or of fact, is no defence in
tort.
A defendant cannot argue that he or she did not know the law relevant to his or
her case.
The maxim ignorantia legis non excusat i.e. ignorance of the law is no excuse,
applies. 107
In Consolidated co. v. Curtis, 1894
109
In respect of a mistake of fact, there are some exceptions to the rule. They
are:
• The basic philosophy behind the statutory immunity is that the lesser
private right must yield to the greater public interest.
111
• The extent of the protection available to a public authority depends on
whether the authority is absolute or conditional. Such a condition may be
express or implied.
• If absolute, then the authority is not liable provided it has acted reasonably
and there is no alternative course of action.
• e.g. to acquire land for the laying down of the railway track; the noise and
vibration will be caused by running the train on it. 112
• If an act is done in pursuance of a mandatory provision of law the authority
executing that mandate is not liable for any loss which is caused to the
plaintiff if that authority has been negligent in performance of the duty.
• Government can acquire land even against the will of people for the
development purpose as they have statutory authority;
• but a builder cannot force one to sell his property under the garb of
development, as he has not statutory authority.
113
Ram Gulam v. Government of the United Province, (1951) 1 All. 135
• Certain ornaments were stolen from the house of the plaintiff. On a search
made by the police they were recovered from another house and produced as
exhibits at the trial of those who were prosecuted in connection with the
theft. Thereafter they were kept in the Collectorate godown from where they
were again stolen and could not be traced.
• The Plaintiff sued the Government of the United Provinces for recovery of the
ornaments, and in the alternative for the recovery of their price.
• It was held that the Government was not liable as the alleged tortuous act
was performed in discharge of an obligation imposed by law. [Also see
Kasturilal v. State of U.P. AIR 1965 SC 1039]
114
Vaughan v. Taff Vole Rly. Co. (1860) 5 H&N 679
• The defendants were not liable for fires caused by sparks from engines
since they were obliged to operate a railway and had done so with proper
care.
115
• Where the authority is conditional,
• the public authority has the power to act provided it is possible without
causing nuisance or some other harm.
• it may carry out the relevant act only if there is no interference with the
rights of others.
116
In Metropolitan Asylum District v. Hil, 1881
117
• Fisher v. Ruislip-Northwood UDC, (1945)
• The local authority had, by statute, been given power to erect air-raid
shelters on the highway. In the black-out, Fisher drove his motor cycle into
such a shelter, and was injured. When sued for the tort of public nuisance,
the Council pleaded that it had statutory authority to put up the shelter.
• The defence failed, because the Council could, even in the black-out, have
put up small, shaded warning lights for motorists. The Council only had
statutory authority on condition that it was exercised with care for the
safety of others.
118
Case Analysis
Parrot v. Wells, Fargo & Co. (The Nitro-Glycerine Case)
82 U.S. 524, 21 L. Ed. 206, 15 Wall. 524 (1872)
Facts –
The landlord's buildings were damaged by a package that exploded.
The tenants, express carriers, did not know the contents of the package or
have any reason to suspect its dangerous character.
Landlord filed a suit for damages for causing damage to his other
buildings which were given to other tenants.
The trial court held that the tenants were not liable for injuries to that
portion of the buildings not covered by their lease.
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The landlord filed an appeal in United States Supreme Court.
Judgement
United States Supreme Court affirmed the decision by observing that the
tenants, as carriers, had no duty to require knowledge of the contents of the
package unless there were good grounds for believing that the package
contained something dangerous.
They were not liable for injuries resulting from an unavoidable accident that
occurred while they were engaged in a lawful business and exercising the
standard of care required of a person of ordinary prudence and caution.
120
Case Analysis
Collins v Renison, 1754
Facts –
The plaintiff went upon a ladder for nailing a board in the defendant’s
garden wall.
Facts –
the defendant took the plea of private defence by saying that the plaintiff
was trespassing.
Judgement
the Court rejected the plea by stating that You may only use reasonable
force to eject someone; if the force used is not, then you cannot rely on
self-help. 122
Than You
123
Defamation
What is defamation?
124
Definition of Defamation –
According to Blackstone - “Every man has right to have his reputation preserved
inviolate”-
126
Distinction between libel and slander
Slesser L.J made observation regarding libel and slander in this case.
128
Position of libel and slander under British Law
In law of Tort, Libel is actionable per se but Slander is not actionable per se
except in exceptional cases.
Exception –
Imputation of criminal offence to plaintiff
Imputation of contagious or infectious disease to plaintiff
imputation regarding person’s incompetency, dishonesty and unfitness
in trade.
Imputation regarding unchastity or adultery of women. It was129
created
as an exception by The slander of women Act, 1891.
Position of libel and slander under Indian Law
Section 499 of IPC describes Libel and slander as an offence in criminal law.
In law of Tort, both libel and slander are actionable per se without any special
proof of damage.
130
Position of libel and slander under Indian Law
However in,
Bhoomi Money Dossee v. Natobar Biswas, I.L.R 1928, CAL
Contrary view was expressed by Harrington J.
Issue was whether the law of England as it was before 1891 is applicable in
India in cases of unchastity of women?
Harrington J. observed that there is no need to deviate from old law.
132
Position of libel and slander under Indian Law
However in,
H.C.D Silva v. E.M. Potenger, I.L.R 1946, CAL
Gentle J. supported the view given in Hirabai case and observed that “in my
view the English rule regarding special proof of damage in actions or slander
does not apply in India”.
133