Injuria sine damno Damnum sine injuria
Q. 2 (b). Explain the following two maxims and distinguish between them:
(1) Injuria sine damno.
(2) Damnum sine injuria.
Or
“Injury with or without damages is actionable in law of torts but damage without injury is not actionable.” Explain this statement with suitable case law.
Ans. (1) Injuria sine damno
Meaning. The maxim “injuria sine damno means that if a private right is infringed, the plaintiff will have a cause of action even though the plaintiff has not suffered any actual loss or damage. According to this maxim what is necessary is the infringement of a legal right and not the proof of actual loss or damage.
The term ‘Injuria’ means ‘infringement of a right. Sine’ means without Damno means actual physical loss-whether in terms of money, comfort, health, service or the like “Injuria sine damno” means infringment of legal right without actual physical loss.”
The import of this maxim is that if the right of the plaintiff has been impinged he will have an action even if the actual physical damage is not there.
Leading cases. Ashby v. White [(1703) 2 L.d. Raym 938]. (Refusal to register vote)-In this case the defendant a returning officer, wrongfully refused to register, a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was elected and no loss was suffered by the rejection of the plaintiff’s vote. Held, that nevertheless an action lay. The action was allowed on the ground that the violation of plaintiff’s statutory right was an injury for which he must have a remedy and was actionable without proof of pecuniary damage. In this case Lord Holt, CJ, observed:
“Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary: for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right.”
In Constantive v. Imperial London Hotels, (1944) KB 693, the plaintiff was a member of the West Indies Cricket team which had come to London for test matches. He was wrongfully refused accomodation in a hotel of his choice. He, therefore, sued the defendant hotel though he had suffered no loss or damage by such refusal. The court awarded him nominal damages of five guineas which the defendant had to pay to him for the breach of his right.
The position of Maxim in India-In India the same principles have been followed.
In Jadu Nath Mallick v. Kali Krishna Tagore. 6 IA 190, the Privy Council observed “Where a right is interfered with, injurin sine damno is sufficient to found an action but no action can be maintained where there is neither damnum nor injuria.”
In Bhim Singh v. State of J. &K. (AIR 1986 SC 494), the petitioner an M.L.A. of J & K was wrongfully detained by the police while he was going to attend the Assembly Session. He was not produced before the Magistrate within requisite period. As a consequence of this the member was deprived of his constitutional right to attend the Assembly Session. There was also violation of his fundamental right to personal liberty guaranteed under Article 21 of the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh has been released, but by way of consequential relief exemplary damages amounting to Rs. 50,000 were awarded to him.
The law does not take into account the moral wrongs. So where a person has been put to damages on account of moral wrongs, no action will lie, because such wrongs are not violative of one’s legal rights.
Municipal Board of Agra v. Asharfilal (ILR 44 All 202).-In this case a person entitled to be upon electoral role was wrongfully omitted from such role and was therefore deprived of his right to vote. It was held that he suffered a legal injury for which an action may lie.
Balaji v. Appa (AIR 1924 Bom. 154). In this case obstruction of water was made by the defendant only fourteen feet from the source of the spring. It was held that this obtruction amounted to legal injury for which action was maintainable.
(2) Damnum Sine Injuria
Meaning. This maxim means that damage without injury is not actionable. Mere loss in money or moneys worth does not itself constitute legal damage. Where there has been no infringement of any legal right, the mere fact of harm or loss will not render such act or omission actionable although the loss may be substantial or even irreparable. Damage so done and suffered is called “damnum sine injuria”, i.e., actual and substantial loss without infringement to any legal right and in such cases no action lies The mere fact that a man is injured by another’s act gives in itself no cause of action; the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.
Leading cases. (1) Chasemore v. Richards [(1859) 7 HLC 349](Interception of underground percolating water). The defendants dug a deep well in their own land to supply water to the town of Croydon. The well intercepted the water and the result was that the volume of the water in the stream was greatly diminished and the plaintiff had to close his mill on account of the deficiency of water, and thereby he sustained greal loss. It was held that no action lay, as it was a case of damnum since injuria. It was further held that it made no difference that the use was. ancient
(2) Acton v Blundel ((1343) 12 M & H 324)-(Draining another’s underground water). It was held that no action lay for draining away percolating water from the land of the plaintiff, because the person who owns the surface may dig therein and apply all that is there found to his own purposes at his free will and if in the exercise of such right he intercepts or drains off the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within the description of damnum abseque injuria which cannot become the ground of action.
(3) Mayor of Bradford Corporaton v. Pickles, [(1895) AC 5871 (intercepting of underground water)-The defendant by making excavations on his own land intentionally intercepted the underground water that used to flow to the reservoir of the plaintiff. It was held that the injury inflicted by the defendant on the plaintiff was no legal injury and, therefore, no action lay, although the sole motive of the defendants in doing so was to coerce the plaintiffs. The Court said that the defendants were doing a lawful act over their own land though with a bad motive. But the bad motive does not change the character of the act from lawful to unlawful.
(4) Grant v. Australian Knitting Mills, (1935) All ER 209, 217. (1936) AC 85, 103. Res Lord Wright). Thus, if I have a mill, and my neighbour sets up another mill and ther thereby the profits of my mill fall down, I cannot bring an action against him though I have suffered damage.
(5) Gloucastershire Grammar School’s case, ((1410) YB 11 Hen IV Foli 47 PL 21, 23). In this case a school master set up a rival school to that of the plaintiff’s school with the result that the plaintiff had to reduce their fees in order to prevent decrease in the number of students. He therefore filed a suit against the defendant for damages. It was held that the plaintiff had no remedy for the loss suffered by him because there was no infringement of any legal right of the plaintiff.
(6) Town Area Committee v. Prabhu Dayal, AIR 1975 All 132.-In this case the plaintiff constructed some shops on the old foundations of a building without obtaining necessary sanctions from the Municipal Authorities. The defendants (the Municipal Authority) demolished the said constructions. It has been held that the demolition of an unauthorised building is not injuria to the plaintiff. In such case he can not get compensation even if he has suffered heavy loss.
(7) Vishnu Dutt Sharma v. Board of High School and Intermediate Education, U.P. (AIR 1981 All. 46). In this case a student suffered loss of one year because he was detained for shortage of attendance. But it was found that the college did not maintain a register for attendance. The college acted in violation of a regulation of U.P. Board. It was held that a suit for compensation for loss of one year was not maintainable. It was a case of damage without legal injury.
Differences between Injuria Sine Damno and Damnum Sine Injuria. The important points of difference between the two maxims are as follows:
Injuria sine damno
1. Under this maxim, there is an infringement of any legal right
2. Injuria sine damno is actionable.
3. Proof of infringement of a legal right is sufficient. Proof of economic loss is not required.
4. Injuria sine damno consti- tutes a legal wrong, for which there is a legal remedy
Damnum sine injuria
1. Here there is no infringment of any legal right.
2. Damnum sine injuria is not actionable.
3. Mere damage in respect of propriety or monetary loss is not sufficient to obtain relief.
4. Damnum sine injuria is merely a moral wrong for which law provides no remedy.
Q. 2 (c). Define the following maxims:
Ubi jus ibi remedium.
Ans. Ubi jus ibi remedium
The true foundation of every tort is that law provides remedy for every wrong. Where there is a right there is a remedy. A great wrong is done to a person on violation of his rights. This wrong is to be remedied lest there should be no use of having a right. The principles of law of torts are founded on this very salutary doctrine that law provides remedy for every wrong.
The law of torts is said to be a development of the maxim-‘ubi jus ibi remedium (there is no wrong without a remedy’. ‘Jus’ here signifies the ‘legal authority to do or to demand something’ and ‘remedium’ may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right.”
In Asbhy v. White, (1703) 2 Ld. Raym 93, Holt C.J. have remarked-
‘If a man has a right, he must be of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it and it is a vain thing to imagine a right without a remedy; want of right and want of remedy are receiprocal.
It is not necessary that substantial damage has been caused. It is enough for getting the remedy if the notional damage has been caused. that is to say, a right has been infringed.
Limits of the Maxim ubi jus ibi remedium
The maxim is not intended to mean as it is sometimes supposed to. that there is a legal remedy for every moral or political wrong. There is no legal remedy for the breach of a solemn promise not under seal and without consideration: nor for many kind of verbal slander, though each may involve utter ruin, nor for oppressive legislation, provided such legislation does not violate the constitutional provisions. The maxim means only this that legal wrong and legal remedy are correlative terms and it would be more intelligibly and correctly stated, if it were reversed, so as to read. “where there is no legal remedy, there is no legal wrong-Per Stephen J. in Bradalangh v. Gossett [(1884) 12Q BD 271]
Conclusively, it may be said that the maxim is generally true to its full extent. In fact, law of torts owes its origin and development to the maxim, “there is no wrong without a remedy.” The fundamental principle is that if, law confers a right upon a person, it must provide a remedy for its infringement, but in practice, the plaintiff is required to bring his case under any one of the recognised heads of torts. It has been observed in many cases that if there is no remedy, this is evidence that no right exists (Abbott v Sulivan, (1952) | KB 189, 200).
Q. 3. Write notes on the following:
1. Intention
2. Motive
3. Malice
4. Foreign Tort
5. Malfeasance, Mis-feasance and Non-feasance.
Ans. 1. Intention
Intention means a desire to produce a consequence. Thus, it implies two things: First, an antecedent knowledge on the part of defendant of the injurious consequence of his conduct, and second, a desire on his part to produce such injurious consequence. In tort the consideration of intention has no importance. It is the act which is judged because the aim of the law of Tort is not to punish the wrongdoer but to award compensation to the injured person. In the large number of cases, the absence of intention or bona fide mistake is defence.
When damage complained of is the result not of positive act but of intentional omission the same rule that there is no need of intention in Tort will apply.
Some torts such as assaults require intention on the part of the wrongdoer. But the problem is how to ascertain the intention of man for the devil himself knoweth not the thought of man. Because no one can know what is passing in the mind of another man. The Courts try to ascertain the defendants intention by drawing inference from his conduct.
2. Motive
Motive signifies the reason for conduct and sometimes it is entangled with the word ‘malice’ which has quite a different meaning in law of tort Salmond has described motive as the “ulterior intent”
Motive is generally irrelevant in determining whether an act or omission is a tort or not. If the conduct of a person is unlawful, a good motive will not be a defence for the defendant; and if the conduct is lawful apart from motive, a bad motive will not make him liable. The irrelevancy of an evil motive was affirmed by the House of Lords in Bradford Corporation v. Pickles. Lord Macnaughten indicated, “It is the act not the motive for the act that must be regarded. If the act apart from the motive gives rise merely to damage without legal injury, however reprehensible it may be, will not supply that element.” This principle was emphasised again by the House of Lords in Allen v. Flood, ((1898) AC 17]. An Indian case on this point has confirmed the above contention in which the Court held the irrelevancy of malice in law of torts. [Vishnu Wasudeo Joshi v T.L.H. Smith Pearse, AIR 1949 Nag 362)
3. Malice
Malice is usually classified in two forms, ce malice in fact and malice in law or express and implied malice.
Express or actual malice, or malice in fact means an act done with-ill- will towards an individual. It is, therefore, known as malice in the ordinary or popular sense, ie. ill-will, hatred, enmity against a person. But implied malice means a wrongful act done intentionally without any just cause or excuse. Malice in its legal sense means an act done wrongfully and without reasonable or probable cause. Thus, the terms legal malice’ and ‘implied malice’ are identical in meaning.
‘Malice in law’ or ‘legal malice’ is a term which is practically superfluous as in law tortious act is impliedly malicious on account of its being a legally wrongful act. Bayi, J. defined malice in its legal sense in Bromage v. Proser, (1825) 4B. & C. 255, as “malice in common acceptance means ill will against a person, but in its legal sense means a wrongful act done intentionally without just cause or excuse”
Instances of express malice (Malice in fact)
English Law. It was held in Allen v. Flood. (1898 AC 1) that the defendant was not liable, whatever might have been his motive, as there was no breach of contract or other legal duty by the defendant company.
Indian Law. The Indian Courts have followed the principle of Allen v. Flood. (1898 AC 1) in many cases.
In the case of S. R Venkataraman v. Union of India (AIR 1979 S.C 49 to 51)], the Supreme Court held that a wrongful act is not converted into a lawful act by a good motive. Because as a general rule motive is not relevant to determine a person’s liability in the law of torts. A wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of bad motive or malice.”
4. Foreign Tort
A foreign tort is a tort which is committed abroad, te a tort, the cause of action regarding which has arisen abroad. Such tort can be of two kinds
(i) A tort of reality, ie in the nature of an injury to land situated outside the country. or
(ii) A personal tort, ie in the nature to person or movable property.
Necessary conditions of liability for foreign tort. In order, however, that an action should thus lie for a foreign tort, the following conditions must be fulfilled
1. The act should be unlawful at the place of its commission. The act complained of must be unlawful in the place where it was committed. [Carr v. Francis Times and Co. (1902) AC176]
2. Must be actionable both in India and also in the country where it was committed-A foreign tort to be actionable in India should be actionable both by the law of India and by the law of the country where it had been committed. It is no defence to an action for a tort committed in a foreign country that by the law of that country no civi action lies because the act complained of is punishable as a crime in that country.
3. It should not be tort of purely local nature. The act complained of must not be a tort of purely local nature, such as trespass to or ouster from land, or a nuisance affecting hereditaments
5. Mal-feasance, Mis-feasance and Non-feasance
In every tort there must always be the violation of legal right. Since legal rights and legal duties are correlative terins so it can also be said that in every tort there must be the breach of a legal duty. Breach of legal duty may occur in the following ways:
(1) Mal-feasance. The term ‘mal-feasance’ applies to the commission of an act which one has a legal duty to refrain from, such as, trespass, which are actionable per se and does not require proof of negligence or malice. Unknown to the passengers A drives a motor car without a driving licence. An accident is caused and the passengers are injured. A is guilty of ‘mal-feasance driving without licence was an act which he was under a legal duty not to do. There is thus a breach of a legal duty on the part of A.
(2) Mis-feasance. It consists in the improper performance of an act which one has a legal right to do. Misfeasance of gratuitous undertaking imposes liability
A has a legal right to drive a motor car. Under law, in a congested part of the city the speed of the motor car should not exceed 15 km. per hour. Adrives at an excessive speed of 45 km. per hour and injures B (a passerby) A is therefore, guilty of ‘misfeasance’.
(3) Non-feasance-It applies to the non-performance of an act, which one is under a legal duty to perform. Non-feasance of a gratuitous undertaking does not impose liability.
A, a doctor treating B, advised 8 to undergo an operation of brain tumour. A appoints a date to which B agrees. But on the appointed day A was not available and B was completely paralysed. As A agreed to perform operation he was under a legal duty to perform which he did not do. An guilty of non-feasance.
Personal Disability
Q. 4 (a). What are the persons who cannot maintain an action for tort?
Ans. Persons who cannot sue for Torts
Ordinarily, all persons are competent to sue, but the following are exceptions to this rule where they cannot sue for personal disability-
(i) A convict-In England, a convict sentenced to death, who is not lawfully at large under any licence could not sue for any injury to his property. But by legislation, this incapacity of a convicted person has been done away with. But in India, a convict may sue for torts both to his person and property. Article 21 of the Indian Constitution guarantees that a person shall not be deprived of his life or personal liberty except according to procedure established by law.
In the important case of Sunil Batra v. Delhi Administration, (AIR 1978 SC 1675), the Supreme Court held that the conviction of a person. does not draw any iron- curtain between him and his rights and he is not reduced to a non-person.
In Kewal Pati v. State of U.P. (1995) 3 SCC 800 A convict was attacked by another convict in jail and was killed due to failure of jail authorities to protect him. The dependants of the deceased were awarded Rs. 1,00,000 as compensation
(ii) An alien enemy. An alien enemy cannot sue in his own right. He can sue in India, if permission of Central Government is obtained under Section 83 of Civil Procedure Code, 1908
(iii) Married woman or husband and wife-
English Law. At common law a married woman could not sue unless her husband was joined with her as plaintiff Under the Married Women’s Property Act, 1882, she could sue in tort in all respects as if she were a female sole Under the Law Reforms (Married Women and Tort-Feasors Act, 1935. She could sue or be sued in tort like any other individual as also bring an action against her erring husband.
In modern times, the prohibition of actions in tort between spouses has been productive for serious anomalies and injustices and it has been abolished by the Law Reforms (Husband and Wife) Act, 1962. Each of the parties to a marriage now has the same right of action in torts against the other as if they were not married.
Indian Law. In India, wife may sue her husband for torts to her separate property and unlike the English law the husband may also sue for torts to his property. But neither of them can sue each other for assault. defamation or other personal injuries.
Augustine & another v. Kunjamma Kuriakose & another, AIR 2001 Mad. 480. The fact of impotency was not disclosed by the husband and his father. Divorce was granted. In a suit for damages the Court held the defendant responsible for the deprivation of the married life. The Court allowed Rs. 1,00,000 as damages.
In Samati Devi v. Dalip Singh, AIR 2016 HP 114, the plaintiff (wife) filed a suit for damages against her husband for lowering her prestige. It was found that the plaintiff after the birth of two children from the defendant left her matrimonial home and a third child was born to her by illicit intercourse with some other person. This fact was sufficient to prove that she was leading an adulterous life. Therefore, the Himachal Pradesh High Court held that rejection of her claim for damages by the lower court was proper and needed no interference by the High Court. The appeal was accordingly dismissed.
(iv) A Corporation. A Corporation is treated as a legal person and may be sued for a libel or any other wrong affecting its property, business or reputation. [South Helton Coal Co. v. North Association, (1894) 1 QB 33]. It cannot act propria persona, but acts only through its agents and servants [T. Pillai v. Municipal Council, Sherrotach, AIR 1961 Mad 230].
Now a corporation may be liable for malicious prosecution or for deceit. Corporation are liable only vicariously for the wrongs of their agents or servants.
(v) A Child. An infant has got two positions in law-(i) while he was in his mother’s womb (child en ventre saw mere) i.e. pre-birth position; (ii) after taking birth, post-birth position. In the first position a child cannot maintain an action for injuries sustained en ventre saw mere (i.e., when he was in the mother’s womb). (Walker v. Great Northern Railway Company of Lreland, (1890)].
English Law In England under the Congenital Disabilities (Civil Liability) Act, 1976, a person responsible for an occurrence affecting the parent of child to be born disabled, will be liable to the child if he would have been liable in tort to the person affected.
Indian Law. In Union Carbide Corporation v. Union of India (AIR 1992 SC 425) the Supreme Court refered to the English Act and held that those who were yet unborn at the time of the Bhopal disaster and who are able to show that their congenital defects are traceable to the toxicity from the gas leak inherited or derived congenitally are entitled to be compensated.
(vi) An insolvent.-A bankrupt or insolvent is under a disability to sue for wrongs in respect of his property, but in the case of personal wrongs the right to sue is not taken away. Thus an insolvent whose property has passed to the Official Assignee cannot sue for torts to his person. But, when the injury is both to person and the property, the insolvent can maintain an action for wrong to his person only, and the action for wrongs to his property passes to assignee. [Wenlock v. Moloney, [(1965) 1 WLR 1236].
(vii) Foreign State. A foreign State cannot sue in any Court of India unless such State has been recognised by the Government. (Section 84 of the Code of Civil Procedure).
No suit can be filed against a foreign sovereign without the consent of the Central Government according to Section 86 of the Code of Civil Procedure, 1908.
Q. 4 (b). Who are the persons against whom action under Tort cannot be maintained?
Or
Who are the persons exempted from an action of torts?
Ans. Persons who cannot be sued for Torts. The following persons cannot be sued for torts-
State- In India, State’s Liability with respect to torts committed its servants is governed by Article 300 of the Indian Constitution. The principle of sovereign immunity is available to a limited extent. Article 300(1) of the Constitution lays down-“The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State may, subject to any provision which may be made by an Act of Parliament or the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provisions or the corresponding Indian States might have sued or be sued if this Constitution had not been enacted under Article 361 of the Constitution the Heads of State, i.e., the President of India, and the Governors of States have personal immunity and as such, they are not answerable to any Court for the exercise and performance of the powers and duties of their offices.
In Saheli, a Woman’s Resources Centre v. Commissioner of Police. Delhi (AIR 1990 SC 513), it was held that the defence of sovereign immunity is not available when the State or its officers infringe a person’s fundamental right given under Article 21 (Right of Life and Personal Liberty). In a case the Supreme Court in a public interest litigation allowed Rs. 75,000 as compensation against the Delhi administration to the mother of a child of nine years who died due to beating by a Delhi Police Officer.
In Nagendra Rao v. State of A.P., (AIR 1994 SC 2663), the Supreme Court has swung the pendulum in favour of holding the State vicariously liable for negligence of its officers in discharging ‘statutory powers” and allowed compensation payable by the State for negligence of its officers in discharge of statutory duties.
The Government cannot be liable for any acts by its servants where it is done in the exercise of their statutory duties or in the exercise of the sovereign powers.
In the case of Sarala Sahu v. Orissa, (AIR 2001 Orissa 106), where the death of plaintiff’s husband occurred due to electric current the State was held responsible.
An important development has taken place under Article 21 read with Article 32 of the Constitution. In Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the plaintiff was awarded compensation for his wrongful detention in jail after he was acquitted by Court. In Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82: AIR 1984 SC 1026], the Union of India was directed to pay exemplary damages to the widows of two persons detained by the Jawans of 21st Sikh Regiment. They could neither be produced by the respondents on the direction of the Court nor their whereabouts could be established. In Bhim Singh v. State of J & K, [AIR 1986 SC 494] the plaintiff was awarded compensation of Rs. 50,000. He was a member of legislature and was wrongfully arrested in order to prevent him from attending the session of the legislature. In M/s Inder Puri General Store v. Union of India, AIR 1992 J. & K. 11, where in the communal riots the petitioners belonging to Sikh community suffered losses and an expert committee was constituted by the Government authorities which assessed the actual loss suffered by the petitioners, the Government was held liable to compensate such loss to petitioners. In all these cases violation of life and liberty guaranteed under Article 21 of the Constitution is involved. In Neelabati Bahera v. State of Orissa, [A.I.R. (1993) SC 1960], State was held liable for custodial death under a writ petition under Article 32. The Indian Judiciary has shown its trend to further widening the scope of the State responsibility. The Supreme Court awarded compensation and held the State liable in Achutrao Haribhuu Khodwa and others v. State of Maharashtra and others, [AIR 1996 SC 2377], where a mop was left in the body of patient and formation of pus occurring eventually leading to death of patient.
The Hon’ble Apex Court in In re Human Conditions in 1382 prisons, (2017) 10 SCC 658, emphasised the need to recognise the right of compensation for victims of unlawful arrest or detention as no express provisions exists in the Constitution for grant of compensation to such victims.
It can be said that in the context of modern times the doctrine of sovereign immunity stands diluted.
2. Foreign sovereign English law- Foreign sovereigns cannot be sued unless they themselves submit to the jurisdiction of a Court and waive the privilege [Duff Development Co. v. Kelantan Government, (1929) AC 797).
Indian Law. The principles of English law are fully applicable to Indian Law also. Section 86, C.P.C. lays down that no Ruler of a foreign State may be sued in any Court otherwise competent to try the suit, except with the consent of the Central Government certified in writing by the Secretary to that Government.
3. Ambassadors of foreign powers and their families and servants cannot be sued. This privilege may be waived by submitting to the jurisdiction of courts. Diplomatic privilege does not import immunity from legal liability, but only exemption from local jurisdiction or enforcement of such liability. The remedy against an ambassador is to move one’s own government to induce the Government of that country to take an action against the ambassador and his staff. Thus, diplomatic agents are immune from legal liability for any wrongful act.
4. Persons who from extreme youth or unsoundness of mind are mentally incapable of contriving fraud or malice.- A minor is in general liable for his torts in the same manner and to the same extent as an adult. Thus a minor is held responsible for assault, false imprisonment, libel, slander, seduction, trespass, wrongful detention of goods, fraud, embezzlement, nuisance and the like.
But in those cases, where intention, knowledge, malice or some other condition of the mind of the wrong-doer forms an essential ingredient of the wrong extreme youth may afford a defence. Infants are liable for wrongs of commission and for wrongs of omission. An infant cannot take advantage of his own fraud. He may be compelled to specific restitution of anything he has obtained by fraud, nor can he hold other liable if they acted on his false statement.
Although an infant is liable for a tort, yet an action grounded on contract cannot be changed into an action of tort.
5. A lunatic.- Lunacy is not a good defence in action for a tort, except in cases where intention, knowledge, malice, or any other mental condition is essential to create a tortious liability and a lunatic will not be liable for torts in which some mental condition of mind forms an essential ingredient.
6. Drunkenness. Like lunacy, drunkenness is also no excuse for the commission of a crime; it will hardly, therefore, excuse a tort.
7. Corporation English Law (i) A Corporation cannot be sued unless act done was within the scope of the agent employed by it, (ii) the act done was within the purpose of the corporation, Formerly, it was thought that a corporation has no mind, but it is now settled law that a corporation is liable for wrongs of malice or fraud. A corporation is not liable for any tort of its agents or servants committed in the course of doing an act which is beyond the powers of the corporation.
(ii) Every act done, authorised or ratified on behalf of the corporation by the supreme governing authority of that corporation or by any person or body of persons to whom general powers of corporation are delegated, is for the purpose of law of torts the act of corporation itself, for which corporation is liable.
Indian Law. Trade Union may be registered under the Indian Trade Unions Act, 1962 or it may not be so registered. If it is registered under the Act, it may be sued in its registered name and if it is not so registered, any one or more of its members may be sued on behalf of all members of the union.
8. Married Women-English Law. At common law a married woman could not be sued unless her husband was joined with her as defendant because the wife could not be sued alone. But now under the Married Women’s Property Act, 1882 and Law Reforms (Married Women and Tort-Feasors) Act, 1935; she could be sued alone for the both ante- nuptial and post-nuptial torts, but damages and costs were payable out of her separate property. The common law liability of the husband for post- nuptial torts has not ceased by the Act. Under the Married Women and Tort feasors Act 1935, the husband of a married woman is not liable by reason only of his being her husband in respect of any tort committed by her whether before or after the marriage and cannot be made a party to any legal proceeding of any such tort.
Indian Position. Under the Married Women’s Property Act, 1874 a married woman may sue or be sued in tort as a feme sole. So damages recovered by her are her separate property and damages against her are payable out of her separate property. This Act does not apply to Hindus, Buddhists, Sikhs. Jains and Mohammedans. Married women of these communities can sue and be sued in respect of their separate property. The wife may sue her husband for torts to her separate property and the husband may sue his wife for torts to his property. But neither of them can sue the other for assault, defamation nor other personal wrongs.
9. A trade union. A trade union under the Trade Disputes Act, 1906, was protected for tortious act alleged to have been committed by or on behalf of it. So strikes in breach of existing contracts could be organised. But the protection was withdrawn in the case of a strike which has an object other than the furtherance of a trade dispute under Trade Dispute and Trade Unions Act, 1926 and a strike or lock out was declared illegal.
Under the Indian Trade Unions Act, 1926 a trade union registered under it may be sued in its registered name. A registered trade union and its officers and members are exempted from liability for certain torts only.
Tortious Liability of State
Q. 5. Discuss tortious liability of State. Refer to decided cases to explain your answer.
Ans. Tortious Liability of State-English Law. It was the rule of common law that King can do no wrong. Before the Crown Proceedings Act, 1947 no action would lie against the Crown for wrongful acts committed by its servants in the course of their employment. The principle of liability of the master for the tort of his servants did not apply to the Crown.
The law has been changed by the Crown Proceedings Act, 1947. The Act provides that the Crown shall be subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject-
(i) in respect of torts committed by its servants or agents, provided that the act or omission of the servant or agent, apart from the Act have given rise to a cause of action in tort against that servant or agent or against his estate.
(ii) in respect of any breach of the duty attaching at common law to the ownership, occupation, possession or control of property;
(iii) in respect of any breach of these duties which a person owes to his servants or agents of common law by reason of being their employer.
Indian Law. Art 300 of the Constitution deals with the liability of the State. It runs as follows:
“1. The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by the Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
2. If at the commencement of the Constitution (a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings, and (b) any legal proceedings are pending to which a province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.”
The relevant part of Article 300 is that the Union of India or a State may sue or be sued in relation to its affairs in cases like those in which the Dominion of India or a corresponding province or an Indian State, as the case may be, might have sued or been sued if the Constitution had not been enacted. Thus, the nature and extent of the liability of Government would be same as it existed before the Constitution. Prior to the Constitution East India Company and after the transfer of Government of India to her Majesty with its rights and liabilities by the Government of India Act, 1858, the Secretary of State in Council were liable to be sued for the tortious acts of their servants committed in the course of their employment.
Leading cases. In P & O Steam Navigation Co. v. Secretary for State of India (1868-69) 7 Bom. H.R. App. A. 1), the Bombay High Court had fixed the nature and extent of the Governmental liability for the tortious acts of their servants. In this case the sovereign and non-sovereign functions of a State had been first time distinguished.
In State of Rajasthan v. Vidyavati [AIR 1962 SC 933], the Supreme Court approved the principles of liability laid down in Steam Navigation Company’s case and accepted the distinction between sovereign and non- sovereign functions of State. The observation of Sinha, C. J., made in Vidyavati’s case is important. His Lordship had observed that the Common law rule of immunity based on the principle that ‘the king can do no wrong’ had no application and validity in India.
In Kasturi Lal v. State of U.P. [AIR 1965 SC 1039] Gajendragadkar C.J. (as then he was) observed that there is a distinction between acts committed by the public servant of the State in the exercise of sovereign power delegated to them and acts committed by them which are not referable to the delegation of sovereign powers. If a tortious act is committed by a public servant in discharge of statutory function which are referable to the delegation of sovereign powers of the State, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie.
In Saheli a Women’s Resources Centre v. Commr. of Police, Delhi (AIR 1990 SC 513) the Supreme Court opined that the defence of sovereign immunity is not available when the State or its officers infringe a person’s fundamental right given under Article 21. In this case, which was a public interest litigation, the Supreme Court allowed Rs. 75,000 as compensation against the Delhi administration to the mother of a child of nine years who died due to beating by a Delhi Police Officer.
In the same way letter was treated as a petition under Article 32 of the Constitution in Nilabati Behra v. State of Orissa (AIR 1993 SC 1960) where petitioner’s son died as a result of injuries inflicted on him while he was in police custody. The Court directed the State of Orissa to pay Rs. 1,50,000 as compensation to the petitioner.
In the case of Sarala Sahu v. State of Orissa (AIR 2001 Orissa 106) the death of plaintiff’s husband occurred due to electric current. The State of Orissa was held liable. As the above trend shows in the context of modern time the doctrine of sovereign immunity stands diluted.
In re Human Conditions in 1382 Prisons, (2017) 10 SCC 658, the Apex Court observed that, “it is now a well-settled principle in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes the only suitable remedy for redressal of the stablished infringement of fundamental right of life of a citizen by public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen much get the compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on compensatory and not on punitive element.”
Volenti non fit injuria
Q. 6 (a) Explain the doctrine of volenti non fit injuria.
Or
How far ‘volenti non fit injuria’ is a defence in an action in tort? Explain with illustration.
Or
Explain the maxim Volenti non fit injuria. Describe and give its limitations.
Ans. Volenti non fit injuria. When a person suffers harm voluntarily or has assented to it beforehand, it does not constitute a legal wrong and hence is not actionable. This principle is embodied in the maxim, ‘volenti non fit injuria’.
The effect of such consent or assent is commonly expressed by the above cited maxim. Lord Herschell in Smith v. Baker, [(1873) LR 5 PC 49 at p. 61] remarked: “One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong”. The maxim is founded on salutary principle. Everyone is the best judge of his interest and if he consents, voluntarily to take the risk he suffers, in the eye of law no harm is caused.
If the act complained of was lawful and was done with the consent of the plaintiff, or that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it, the defence of volenti non fit injuria shall apply. The consent may be either -(i) express, or (ii) implied.
Essential conditions of the applicability of doctrine of volenti non fit Injuria. For the application of the maxim the following conditions must be fulfilled. These limiting conditions, in a way, constitute exceptions to the application of the maxim. If these conditions are not satisfied, the rule does not come into play.
1. Consent cannot be given to an illegal act-The act to which consent is given must not in itself be illegal, i.e. fighting with naked fist, a match or a duel with sharp weapon. “No person can license another to commit a crime.” [R. v. Donovon (1934) 2 KB 498].
2. Consent must be freely given The consent must be freely and voluntarily given, that is to say that it should not be obtained through undue influence, coercion, fraud, misrepresentation, mistake or the like elements which may adversely affect the free consent. [Burnett v. British Waterways Bond, (1975) 2 All ER 631].
3. Knowledge of risk is not the same thing as consent to run the risk- Knowledge of a risk is not the same thing as consent to run the risk. The maxim is ‘volenti non fit injuria’ and is not scienti non fit injuria. A knowledge, even if complete, of the danger is in any event, necessary, but such knowledge does not essentially import consent. It is an evidence of consent, weak or strong, according to circumstance.
Leading case. Smith v. Baker, (1891) AC 325. In this case, the plaintiff worked in a cutting on the top of which a crane often swung heavy stones over his head while he was drilling rock face in the cutting. Both he and his employers knew that there was a risk of the stones falling, but no warning was given to him of the moment at which any particular jobbing was to commence. A stone from the crane fell upon him and injured. The House of Lords held that the defendants were liable for damages. Knowledge. of a risk does not mean assent to a risk.
Thus, for the applicability of the maxim volenti non fit injuria two things are necessary:-
(a) Knowledge of the fact that risk in there; and
(b) Voluntary acceptance of the risk.
If only first of these points is present, i.e., there is only the knowledge of the risk, it is no defence because the maxim is volenti non fit injuria. Merely because the plaintiff knew about the risk or harm does not imply that he assents to suffer it.
In certain cases consent is the agreement of the plaintiff, either express or implied to exempt the defendant from the duty of care which he otherwise would have owed.
Exceptions to the maxim
(1) Where the act itself is unlawful and prohibited by law, this maxim is not applicable and the defendant will be liable despite plaintiff’s consent for the act.
(2) No application in Rescue Cases. The maxim does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously faced a risk even of death to rescue another from imminent danger.
Leading cases. Haynes v. Harwood [(1935)! KB 146]-This case is the first authoritative decision on the law with regard to the position of rescuers and this has materially affected the doctrine of volenti non fit injuria. In this case a servant of the defendant left a two horse van unattended in the street. A boy pelted one stone on the horse which bolted as a result thereof and created danger to a woman and a child who were going on that road. A police constable who was on duty sensed the danger to the lives of woman and child. To avert the accident he tried to stop the horses. In this process he sustained some serious injuries but ultimately he succeeded to stop them. The plea of volenti non fit injuria was denied “Risk must be taken to mean what any reasonable person would expect? Everyone knows that trying to stop a runaway horse is a dangerous affair. If then, I am injured in assisting you in quieting a restive horse on your cry of help, it is idle for me to say, I knew the horse would plunge, but did not know how much it would plunge.”
Baker v. T. E. Hokins and Sons, (1959) 1 WLR 966.-In this case a well was filled with poisonous fumes on account of negligence of the employer, as a result of which two workmen were overcome by fumes. Plaintiff were 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 he himself was overcome by the fumes and he died. The widow 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.
Dr. J. N. Srivastava v. Ram Bihari Lal, AIR 1982 MP 132. In this case the doctor observed after opening the abdomen cavity that patient’s appendix was all right but the operation of gall bladder was needful. He proceeded with the operation but later on the patient died. Held-It was not possible to seek the consent for the gall-bladder operation. In such situations doctor was not responsible.
Chellamma v. Kerala, SEB, AIR 2010 NOC 355 Ker. In this case, a person was repairing a transformer under authority. During work he sustained electric shock. A person passing by ran to his rescue. Both persons died in the process. The Electricity Board was not able to save itself from liability by putting for the defence that their death was the consequence of an unforeseen act of a stranger. The claimants were held entitled to compensation for loss of life.
(3) No application in case of negligence. The maxim does not apply to cases of negligence,
Leading case. Dann v. Hamilton. [(1939) 1 KB 509]. In this case the plaintiff chose to travel by a car, whose driver was drunk to her knowledge and engaged the driver. She was injured in accident and driver was killed. In an action against personal representative of the driver, the defendant raised the plea of voleni non fit injuria. Held, the maxim is the element of negligence is not applicable where present.
(4) A person guilty of a breach statutory duty towards another cannot take the defence of latter’s consent.
Contributory negligence and the maxim volenti non fit injuria. (1) 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.
(2) The maxim volenti non fit injuria is a complete defence, while in contributory negligence the claim of the plaintiff is reduced to the extent the claimant himself was to blame for the loss.
Act of God and Inevitable Accident
Q. 6 (b). Explain Act of God and ‘Inevitable Accident’ and differentiate between them as general defences in the law of Tort.
Ans. Act of God.-Act of God “is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it” (Pollock). Tsunami is a good example of Act of God.
In its wider meaning, act of God means “any event which could not have been prevented by reasonable care on the part of any one.”
The leading case on the point is Nicholas v. Marsland [(1875) LR 10 Ex 255]. In this case the defendant constructed three artificial lakes which were fed by a natural stream. The lakes were well constructed and adequate in all normal circumstances. However they were destroyed by a very heavy rainfall of quite exceptional violence with the result that the plaintiff’s bridges were damaged. It was held that the defendant was not negligent and the accident was due to an act of God.
In Saraswati Parabhai v. Grid Corp. of Orissa and others (AIR 2000 Orissa 13), an electric pole was uprooted and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of act of God held that it was the responsibility of the Grid Corporation authorities to provide protection in such situation of storm and rain.
The essential conditions of the defence of an act of God are:
(1) The event causing damage was the result of natural forces without any intervention from human agency, and
(2) the event was such that the possibility of such an event could not be recognized by using reasonable care and foresight.
(3) it should be extraordinary in nature.
Today the scope of this defence is very limited, because with the increase in knowledge the foresight also increases and it is expected that the possibility of the event could have been visualized.
In Ramlinga Nadar v. Narayana Redilier (AIR 1971 Ker 197), the Kerala High Court held that the criminal actvities of the unruly mob cannot be considered to be an act of God.
In Saraswati Parabhai v. Grid Corp. of Orissa and Others (AIR 2000 Orissa 13) an electric pole was uprooted and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of act of God held that it was the responsiblity of the Grid Corporation authorities to provide protection in such situation of storm and rain.
Inevitable Accident. An inevitable accident is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. According to Pollock an inevitable accident is, “an accident not avoidable by any such precaution as a reasonable man doing such act then and there, could be expected to take”. The plea of inevitable accident is that the consequences complained of as a wrong were not intended by the defendant and could not have been foreseen and avoided by the exercise of reasonable care and skill-[Mc Bride v. Strirt, 1944 N.Y. 7. 10.]
Inevitable accident is a valid defence for liability in tort in the present day, In Stanley v. Powell. [(1891) 1 QB 86]. Powell was one of the shooting parties. He fired at a pigeon. A pellet from his gun glanced off the bough of a tree and wounded Stanley, who was carrying cartridges and game for the party. Stanley sued Powell, who was held not liable for negligence because there was none, nor for trespass to the person because the harm was accidental in the sense that there was no neglect or want of due caution in its occurrence. The judgment of the Stanley v. Powell was followed in National Coal Board v. J.E. Ewans, [(1951) 2 All E.R. 310] also.
All causes of inevitable accident may be divided into two classes:
(1) Those, which are occasioned by the elementary forces of nature unconnected with the agency of man or other causes; and
(2) Those, which have their origin either in whole or in part in the agency of man, whether in the commission or omission, non-feasance or misfeasance or in any other cause independent of the agency of natural forces.
The term “act of God” is applicable to the former class-[Nugent v. Smith, (1876) 1 C.P.C. 423, 435]. The latter type of accidents are termed “inevitable accidents” or “unvoidable accidents.”
If in the performance of a lawful act done with all due care, damage ensues through some unavoidable cause, such damage affords no cause of action. “People must guard against reasonable probablities, but they are not bound to guard to guard against fantastic possibilities.” (Fardon v. Harcourt Rivington (1932 146 L.T. 391].
In A. Krishna Patra v. Orissa State Electricity Board (AIR 1997 Orissa 109) the Court explained inevitable accident and held that an inevitable accident is an event which happens not only without the concurrence of the will of the men, but in spite of all efforts on his part to prevent it.
Limitations of this defence– In trespass as well as in regligence, the defence of inevitable accident has no place. Similarly, under the rule in Rylands v. Fletcher, the defendant is liable even if he has taken reasonable care. In the same way this defence does not apply in cases of absolute liability.
Distinction between Act of God and Inevitable Accident
Act of God
1. Any accident which occurs from natural causes without human intervention is known as Act of God.
2. An act of God is much older and much simpler defence than inevitable accident.
3. As regards cases of strict liability, (Rule in Ry-lands v. Fletcher) Act of God is a good defence.
Inevitabte Accidents
1. The accident which has origin in the agency of man having no connection with natural forces is Inevitable Accident.
2. Inevitable accident is more modern and more complex defence than Act of God.
3. In cases of strict Liabi-lity, inevitable Accident is no defence.
Act of State
Q. 6 (c). Discuss the importance of “Act of State” as a defence of tortious liability.
Ans. Meaning of “Act of State:.- An act of State is an act which is done in exercise of sovereign power against an alien. It is an act which causes injury to a foreign State or its subjects. It is done by the representative of a State. It may be either previously sanctioned or subsequently ratified by the State. According to Sir James Stephen, act of State is an act which is “injurious to the person or to the property of some persons who is not at the time of the act a subject of His Majesty; which act is done by any representative of His Majesty’s authority, civil, or military and is either previously sanctioned or subsequently ratified by His Majesty.”
The plea of act of State applies only to aliens. Such plea can not be taken by a State against its own citizens. It is a well-recognised principle in England that the Crown can interfere with person or property of its subjects only in accordance with law. The British Crown cannot take the plea of the act of State against its citizens. The same principle is followed in India also.
In an act of State action of the State is not sought to be justified on the basis of law. What negates the liability of the defendant is the fact that municipal Courts have no jurisdiction in respect of an act of State. In such cases, redress may be had through diplomatic channels.
Leading cases. Buron v. Denman [(1848) 2 Ex. 167]. In this case the plaintiff owned some slaves and slave Barracoons on the West Coast of Africa which was outside the British Dominions. The defendant, the Commander of a British warship, released the slaves and destroyed the property of the plaintiff. It was held that no action would lie because it was an act of State.
Secretary of State-in-Council of India v. Kamachee Daya Saheba, 7 MIA 476. In this case the rule that the Municipal Courts have no jurisdiction over an act of State was recognised in India. In this case Raja of Tanjore, an independent Sovereign, died without leaving an issue. Under the doctrine of lapse, East India Company declared it to have become part of British dominion. Kamachee Baya Saheba, the widow of the Late Raja of Tanjore brought action against this act of the company. The Privy Council held that since it was an act of State, Municipal Court can have no jurisdiction over it, for such Courts have neither the means of doing what is right nor the power of enforcing any decisions they make.
State of Saurashtra v. Memon Haji Ismail, AIR 1959 SC 1383.-In this case the Apex Court held that an act of State is an exercise of power against an alien and neither intended nor purported to be legally founded. A defence of this kind does not seek to justify the action with reference to the law but questions the very jurisdiction of the Courts to pronounce upon the legality or justice of the action.
Virendra Singh & others v. State of U.P., AIR 1954 SC 447; Bansidhar Premsukh Lal v. State of Rajasthan, AIR 1967 SC 40.-In these cases the Apex Court stated “It is impossible for a sovereign to exercise an act of State against its own subjects”.
Exceptions to defence of “act of State”. There are three exceptions in which the government can be made liable, even though the acts may be acts of State, viz,
(a) trespass to immovable property,
(b) an obligation imposed by a Statute, and
(c) where it can be shown that benefit has resulted to Government from a tort of its servants.
Act of State and sovereignty. In Nagendra Rao & Co. v. State of A. P., AIR 1994 SC 2663, the Supreme Court has demarcated the line between “acts of State” and sovereignty. It was held that an exercise of political powers, i.e. the sovereign power by the State or its delegate does not furnish any cause of action for filing a suit of damages or compensation against the State for negligence of its officers. But that defence is not available when the State or its officers act negligently in discharge of their statutory duties. Such activities are not acts of States.
Modes of Discharge of Tort
Q. 7 (a). Explain with examplesthe various modes of discharge of tort.
Or
Discuss the modes in which liability in Torts is discharged.
Or
What are the grounds which in general extinguish tortious liability?
Ans. Circumstances for discharge of tort. A right of action for tort may be discharged or extinguished in the following circumstances
1. By the death of the parties; 2. Waiver; 3. Accord and satisfaction; 4. Release; 5. Acquiescence; 6. Judgment; and 7. Statute of limitation.
(1) Death of the parties. ‘Actio Personalis moritur cum persona’-Old English Law. In common law the action for damages came to an end with the death of the person by whom the wrong was done and also with the person to whom wrong was done. At common law the rule was that the personal representative could not recover in tort for personal injuries sustained by the deceased during his lifetime. This principle was expressed in the maxim ‘actio personalis moritur cum persona.’. This means that a personal action died with the parties to the cause. The application of the maxim was limited or curtailed by several Statutes.
Exceptions to the rule. The Common law had engrafted a number of exceptions to the rule, ‘actio personalis moritur cum persona
(i) Breaches of contract. The maxim was confined under the Common Law to actions which gave rise both to torts and breaches of contract, were excluded from the operation of the rule, e.g., breach of promise of marriage.
(ii) Wrongful appropriation of another’s property. The rule did not apply to torts which consisted in the wrongful appropriation of another’s property. It was sufficient that the wrong-doer’s estate had benefited in some manner by the wrongful appropriation. (Philips v. Harfray, (1883) 2 Ch D 439).
(iii) In a suit where decree had been made in favour of plaintiff. If an existing suit had ended in a decree in favour of plaintiff, further proceedings by appeal, revision or otherwise did not abate on the death of either party- Gopal v. Ram Chandra, (ILR (1902) 26 Bom 597). But if the decree declared only a personal right or status, further proceedings could not be started or continued on the death of the either party. (Kalloo v. Ramazan, AIR 1948 Oudh 14).
Present English Law.- Law Reforms (Miscellaneous Provision), Act 1934. The Law Reforms (Miscellaneous Provisions) Act, 1934 has altogether abolished the rule of ‘actio personalis mortiur cum persona.”. Under this Act, on the death of any person all causes of action vested in him shall survive for the benefit of his estate, except (i) defamation, (ii) seduction, (iii) inducing one spouse to leave or remain apart from the other, and (iv) claim for damages for adultery.
Indian Law. Under Section 306 of the Succession Act, 1925, all rights to prosecute any action existing in favour of a deceased person survive to his executors or administrators except an action for (1) defamation, (2) assault as defined in the Indian Penal Code, (3) personal injuries not causing the death of the party. So the application of the maxim is confined to the above three cases in India.
In Supreme Bank v. P.A. Tendolkar, (AIR 1973 SC 1104) the Apex Court has held that where there is breach of statutory duties by the director of a bank and he later on dies, after the enquiry into his conduct has been made, the cause of action will not come to an end.
In such cases, the liability of the representatives would be confined to the assets or estate left by the deceased in the hand of successors.
In Municipal Corporation of Delhi v. Subhagwanti, (AIR 1966 SC 1750), it was held that the legal representatives are entitled to claim compensation in the case where on account of the negligence of the applicants, the clock tower in Chandni Chowk fell and caused death of three persons.
Death of the wrong-doer: English Law. In common law no action could be maintained against the executors or administrators of a wrong-doer for torts such as trespass to goods, false imprisonment, assault and battery, malicious prosecution, slander, fraud or negligence. But where property, or the proceeds or value of property, belonging to another, had been misappropriated by the wrong-doer and added to his own estate or money the estate was liable to the extent to which it had increased. Under the Law Reforms (Miscellaneous Provisions) Act, 1934, on the death of any person personal causes of action subsisting against him shall survive against his estate except actions for (1) defamation, (2) seduction (3) inducing one person to leave or remain apart from the other, and (4) claim for damages for adultery. No proceedings are maintain-able unless-
(1) proceedings were pending against the deceased at the date of his death, or
(2) the cause of action arose not earlier than six months before his death and proceedings are taken not later than six months after his personal representative took out representation.
Indian Law. Under the Legal Representative Suits Act, 1855, an action may be maintained against the executors or administrators or representatives of any deceased person for any wrong committed by him for which he would have been subject to an action provided such wrong has been committed within one year before his death. This Act does not apply to an action commenced against the wrongdoer in his lifetime and only subsequently sought to be committed against his heir-[Haridas v. Ramdas. ILR (1889) 13 Bom 677.]
2. Waiver- Where several civil remedies are available to a person in respect of the same, legal wrong and where the person aggrieved chooses to resort to one, he shall be deemed to have waived the others and shall be debarred from seeking those others. Thus, where a wrong constitutes both a breach of contract and a tort and where the aggrieved person sued for breach of contract he shall not later be allowed to sue for tort as well. But he can alternatively claim for all the remedies in the same suit, e.g. he can say that if he be held not to be entitled to damage on the ground of breach of contract, then he be awarded damages in tort.
Illustration. If A is wrongfully deprived of his goods by B, and goods are afterwards sold, A may bring an action for damages for the tort, or he may sue for the price received by B.
The plaintiff’s right to waive off his right to sue the defendant for his tortious act has been expressed in the Latin maxim consensus tollit errorem which means-consent destroys the wrongful act.
3. Accord and Satisfaction.-‘Accord’ signifies the agreement. ‘satisfaction’ the consideration which makes it operative. The satisfaction may be either executed or executory. If satisfaction is made after the execution of the agreement this sort of arrangement is accord and satisfaction and it operates as a bar to the right of action. Accord without satisfaction is not a bar to the right of action. Lee v. Lancashire & York Rly. Co., (1871) LR 6 Ch 527.
4. Release. A release is the giving up or discharging the right of action which a man has or may have against another man. An injured person can release the wrong-doer from liability to compensation. Release may be effective apparently, whether it is given before or after an action has been stated.
In India, however, according to Section 63 of the Indian Succession Act consideration is not necessary for release and, therefore, it would be open to an injured party to release the wrongdoer without any consideration.
Where there are more than one defendant, the release of one is not ipso facto release the others from liability unless the plaintiff has expressely released others from liability.
5. Acquiescence. It is a well-settled principle of law that if a person with full knowledge of his right to bring an action for tort, neglects to do so for a length of time, it may be inferred that he has abandoned the right. Mere delay, however, is not sufficient but there must be direct acquiescence to destroy the right of action-Uda Begum v. Immuddin, (1875) 1 All 82.
Distinction between waiver and acquiescence
(1) Keeping silence despite having knowledge about the existence of legal right to bring an action against the defendant is known as acquiescence whereas in case of waiver, the plaintiff expressely abandons his right.
(2) The legal principle that law helps those who are vigilant and not the dormant is applicable in case of acquiescence but in case of waiver.
(3) The principle of acquiescence resembles the doctrine of estoppel to a greater extent whereas waiver is similar to the principle of release.
6. Judgment. Final judgment by a Court of competent jurisdiction extinguishes a right of action. This is substantially the rule of res judicata. When once a suit has been filed and decided a second suit cannot be filed on the same cause of action because more than one action will not lie on the same cause. If a judgment is recovered (obtained) for a wrong no second action can be brought as the judgment acts as a bar, even though it is subsequent when the action was brought.
When the injury is of a continuing nature, the bringing of an action and the recovery of damages by way of reparation of the original wrong does not prevent the injured party from bringing a fresh action for the continuance of the injury. When damage is not only the proper remedy, as in the cases of trespass, a fresh cause of action arises de die in diem. But in those cases where damage is the essence of the action, a fresh cause of action arises as often as fresh damage accrues.
7. Statutes of Limitation. An action for tort should be brought within the period of limitation prescribed for it, otherwise the right to sue is barred by limitation. In India the Indian Limitation Act lays down the respective period within which to sue for different Torts.
Q. 7 (b). “A personal right of action dies with the person”. Write a critical note on this maxim and explain exceptions to the rule with reference to Indian Law.
Or
Explain clearly the maxim “Actio personalis mortiur cum persona.”
Or
Explain the maxim “Actio personalis moritur cum persona”. Does it apply in India?
Ans. Actio personalis moritur cum Persona. Please See Q. 7 (a)
Remedies for Torts
Q. 8 (a). What are various kinds of remedies for Torts?
Or
Explain Judicial or Extra-Judicial Remedies for Torts?
Ans. Remedies for Torts. The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium (there is no wrong without a remedy). The maxim means that legal wrong and legal remedy are co-relative terms. Where there is legal wrong, there is legal remedy.
In the law of torts the remedies available to the injured person can be divided into two heads-
(1) Judicial, and
(2) Extra-Judicial
(1) Judicial Remedies Judicial remedies are remedies by way of action at law. The injured party may institute suit in a Court of law and obtain redress. The remedies obtainable for a tort by means of an action at law are mainly of three kinds (a) Damages, (b) Injunction, and (c) Specific restitution of property.
(2) Extra-Judicial remedy. These are available to a party by his own acts alone without resorting to the aid of law, e.g. expulsion of a trespasser. re-entry on land, abatement of nuisance etc.
(1) Judicial remedies.- (a) Damages. Award of damages is an ordinary and essential remedy for a tort. In fact it is available in all cases of tort because tort is a civil injury for which the remedy is by way of an action for damages. The object of awarding damages is to place the injured party, so far as money can do it, in the position which he would have occupied if the wrong had not been committed.
Damages represent the pecuniary recompense recoverable by process of law, by a person who has sustained an injury through the wrongful act or omission of another.
General and special damages.-Damages are distinguishable as being either general or special. General damages are such as the law will presume to be the natural consequences of the defendant’s acts. Special damages are such as the law will not infer, unless proved at the trial.
Kinds of Damages. There are four kinds of damages:
(i) Contemptuous damages. Contemptuous damages are awarded when the harm suffered is so trivial that the Court deems that the particular action should never have to come to the Court.
(ii) Nominal Damages. Such damages are awarded merely for the purpose of recognition of the legal rights infringed.
In Ashby v. Whilte, [(1702) 2 Ltd. Raym 983], a returning officer wrongfully refused to register a duly tendered vote of the plaintiff, legally qualified voter, though the candidate for whom he intended to vote was elected. It was held that an action lay and the plaintiff was entitled to nominal damages.
(iii) Real or substantial damages. Real or substantial damages are those which are assessed and awarded as compensation for damage actually suffered by the plaintiff, and not simply by way of mere recognition of a legal right violated.
(iv) Exemplary or vindicative or Retributory or Punitive Damages.-
They are awarded when the wrong or injury is of a grievous nature, done with a high hand, or is accompanied with a deliberate intention to injure, or with words of disgrace and abuse, e.g gross defamation, seduction of a man’s daughter, malicious prosecution.
(b) Injunction-The other important judicial remedy for tort is by way of injunction. Injunction means an order of a Court of Justice directing the defendant to abstain from the commission, continuance or repetition of an unlawful act, or to do some act which he is legally bound to do. Injunction may be-
(a) interim
(b) temporary
(c) perpetual
(d) mandatory.
(c) Specific Restitution of Property. The third remedy is the specific restitution of property. Thus, a person who is wrongfully dispossessed of immovable property, or of specific movable property is entitled to recover such property.
(2) Extra-judicial Remedies. In addition to judicial remedies, extra-judicial remedies are also available to the injured parties. Various extra-judicial remedies may be discussed as follows:
Expulsion of trespasser. It is a well-known principle of law that a person can use legitimate force in order to repel an intruder or trespasser. The condition precedent to such right is physical possession on the part of the person claiming that right irrespective of title. A person, who is entitled to the immediate possession of immovable property may expel the trespasser therefrom and re-enter it, provided that the force used by him does not transgress the reasonable limits of the occasion. In other words, the force employed must not be disproportionate to the evil to be prevented.
Re-entry on land. A man wrongfully dispossessed of his land may retake its possession, if he can do so in a peaceful and easy manner.
Reception of goods. A person entitled to the immediate possession of chattels may recover them from any person who has them in actual possession and detain them, provided that such possession was wrongful in its inception.
Abatement of nuisance. In case of nuisance, private or public, under certain circumstances and subject to limitations the injured party has a right to remove it. Thus it is lawful for an owner or occupier of land, or for any one by the authority of the occupier, to terminate by his own act any nuisance which may injuriously affect his land provided that in doing so he does not cause any unnecessary damage, for which he shall be liable. For instance, it is quite legal for a person to cut over hanging branches or spreading roots from his neighbour’s trees or remove obstructions to his lights or his ancient rights of way or extinguish a dangerous fire on adjoining property. In some cases public nuisance can also be abated even where special damages cannot be proved.
Distress damage feasant. The term ‘distress’ means a right to detain “feasant”, means an object which has done a wrong; and ‘damage’ implie the loss caused to the owner or the occupier. Where the owner or occupier of land finds any cattle trespassing on his property and unlawfully on his land and causing damage, he has a right to seize and detain it and refuse to release it unless the owner pays compensation for the damage suffered by him.
The right of distress over trespassing of cattle or animals has, however, been abolished in India consequent to the passing of the Cattle Trespass Act. 1971 and now the trespassing cattle are impounding in cattle pond.
Mental and Nervous Shock
Q. 8 (b). What is the meaning of mental shock? What is the criterion of liability in an action of mental shock?
Or
Is it open to a person to recover damages for mental and nervous shock, and if so, in what circumstances? Explain your answer with the help of case law.
Ans. Mental and Nervous Shock. Mental Shock implies, a shock to the moral or intellectual sense; by nervous shock is meant a shock to the nerve and brain structures of the body. Nervous shock is a form of personal injury for which damages may or may not be recoverable according to the circumstances of the particular case.
An action lies for nervous shock and bodily illness or disorder supervening on it, though the shock was caused not by the application of physical force to the body of the sufferer, but by words or acts calculated to cause emotional disturbance like sear, sorrow or distress. The rule relating to nervous shock has been well settled by decisions in England in Dulieu v. White, (1901) 2 KB 669 and Bourhill v. Young, (1943) AC 92 and has been accepted as good law in India in G.G. in Council v. Surajmal, AIR 1948 Nag. 989. The cause of action appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damages, even though this type of damage may be unexpected, namely, shock. It is not essential that apprehension of human safety should be involved.
Leading cases. Bourhill v. Young, (1943) AC 92. In this case, a motor cyclist, while negligently driving at an excessive speed collided with a motor car and was killed. The plaintiff, a fish-wife, standing at some distance from the point of impact heard the noise although she did not see the accident, and suffered fright resulting in severe nervous shock which disabled her from carrying on her trade for sometime. At that time she was also pregnant and she gave birth to a still-born child, owing to the injuries sustained by her. It was held, the action was not maintainable on the ground that after the cyclist had left the woman plaintiff so far away from the scene of the collision, no duty to be careful to her remained; although he would have been liable, if he had caused a nervous shock to any person within that sphere of danger, that is, within the sphere near about the place of accident.
In the words of Lord Macmillan “It is now well settled that illness due to nervous shock is actionable, irrespective of actual bodily impact. An action will lic for injury for shock sustained through the medium of the eye or the ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one. For mental shock is presumably in all cases the result of, or at least accompanied by. some physical disturbance in the sufferer’s system.”
Wilkinson v. Downston (Gray Hair Case) (1897) 2 QB 75. In this case the defendant by way of practical joke gave a false information to the plaintiff that in an accident her husband had been severelly injured, and was lying in hospital, the plaintiff got a shock and got ill, and her hair turned white, and her life was in great danger for some time, and her husband had to incur heavy expenses for her treatment. It was held that the action was maintainable.
In Abramjik v. Brenner, (1967) 65 DLR (2nd) 651, it was held that the maintainability of the action of nervous shock, the shock must come through sight or hearing of the event or of its immediate aftermath.
Veeran v, Krishnmoorthy, AIR 1966 Kerala 172. In this case a child was injured by negligent driving of a bus driver. Kerala High Court, allowed medical expenses for the child’s treatment as general damages, and special damages for mother’s nervous shock.
M.L. Singhal v. Pradeep Mathur, AIR 1996 Del. 275. In this case the Delhi High Court allowed the claim of the plaintiff based on mental torture suffered by him on seeing his wife being not properly nursed and that there was a leakage of catheter. The plaintiff was allowed compensation of rupees 10,000.
Lucknow Development Authority v. M. K. Gupta, AIR 1994 SC 767. In this case, the Supreme Court allowed damages for mental agony caused by harassment of the plaintiff by the officers of a public authority.
Greatorex v. Greatorex, (2000) 1 WLR 1970. It has been held that where the primary is the negligent defendant and the shock of the plaintiff arose from witnessing the defendant’s self-inflicted injuries, there is no liability in negligence. The defendant does not owe a duty of care to the plaintiff as his father and rescuer not to cause him psychiatric injury by exposing him to the right of defendant’s self inflicted injuries due to negligent driving.
Augustine and another v. Kunjamma Kuriakose and another, [AIR 2001 Mad. 480]
The fact of impotency was not disclosed by the husband and his family. After divorce in a suit for damages the Court held the defendant responsible for deprivation of the married life and also made her parents to undergo mental agony. The Court allowed Rs. 1,00,000 as damages.
In G.G. in Council v. Surajmal, AIR 1948 Nag 989, it was held that in a suit for damages for injury which results, not in direct bodily injury but in nervous shock, the damage must be the natural and probable consequence of the defendant’s wrongful act and must flow immediately from the cause. The standard to be applied in these cases is the standard of ordinary normal health persons and not of some supersensitive psychopath.
In Kerala University v. K. Mauli Francis, AIR 2005 Ker 11, the plaintiff who was a student of Kerala University had applied for revaluation. The result of revaluation was declared by the university after an unduly long delay. He claimed damages alleging that the delay in his result had caused him mental distress and he suffered from psychiatric trauma. Admitting the claim, the Court directed the university to pay him Rs. 10,000 as damages for mental pain.
Measure of Damages
Q. 9 (a). What are the various kinds of damages? How damages are awarded?
(b) What measure should be taken in awarding damages?
Ans. (a) Kinds of damages. Please see Q. 8 (a)
(b) Measure of damages. By the term “measure of damages” we mean the standard of method or calculation by which the amount of damages is to be assessed. The onus lies on the plaintiff to produce the best evidence he can, to prove damages.
In calculating damages to which the plaintiff is entitled to in respect of an injury the Court has to take into account as to what would be the particular sum which will make good the loss suffered by the injured, so far as money could do it, and will try to make good the loss which the plaintiff has suffered as a natural result of wrong done to him. This rule is however, subject to the remoteness of damages. [Admiralty Commissioner v. S.S. Valute (1922) 1 A.C. 129].
The legal principle is well established that general damages are not required to be proved specifically. In case of personal injuries the person injured is entitled to damages for loss of earnings or capacity, medical and other expenses, pain, suffering and mental distress; and loss of expectation of life. [Ganapathy Bhatta v. State of Mysore, AIR 1960 Mys 220].
In Ram Krishna v. P. Pennayam, (A.I.R. 1974 Mad. 33), the Madras High Court held that normal measures of damages in a case of a tortious act is the value of the article at the place of damage and at the time of damage which is ascertained at the replacement cost of the thing lost. Where no market exists in which such prices can be ascertained and where the damage to the lost property is found to be such as could not be repaired, the plaintiff would be entitled to the replacement cost of the lost property.
Remoteness of Damages
Q. 9 (b). What do you understand by ‘Remoteness of damages’? Explain.
Or
“Theoretically the consequences of any conduct may be endless, but no defendant is responsible ad infinitum for all the consequences of his wrongful conduct.”-Winfield.
Discuss the development of law relating to remoteness of damages with the help of leading cases.
Or
What do you understand by remoteness of damage? How far remoteness of damage is a good defence in tort?
Ans. Doctrine of Remoteness of damages. A person is liable for damages in law only when his wrongful conduct is directly or immediately related to the effect of his action. Where the damage is too remote a consequence of his wrongful act, the injured party cannot recover any damages. According to the doctrine of remoteness of damage, damages are said to be too remote, where the causal connection between it and the defendant’s act is regarded by the law is not sufficiently direct to create responsibility. This doctrine is also known as “Doctrine of Natural and Probable consequences”. It is closely related to the Law of Negligence and has undergone a change in course of time as a result of judicial pronouncements. This doctrine is also expressed by the maxim, “Injure non remote causa sed proxima spectatur.” which means “in law, the immediate, not the remote, cause of any event is to be considered.” Therefore, damage must be the direct and natural result of the defendant’s act. A man is presumed to intend the natural but not the remote consequences of his act. Damage is said to be too remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, or which could not have reasonably been foreseen, that the wrong-doer would be made responsible for it. A man is not liable for all the consequences of his wrongful act or default. Where the causal connection between the wrongful act and injury is not sufficiently direct, there is no liability..
Cases where the damage will be considered as too remote. In the following cases damage will be considered too remote:-
(a) where the defendant’s act is not the direct cause of the damage sustained by plaintiff.
(b) when the damage is caused wholly or principally, by the act of the plaintiff himself, it can not be regarded as the necessary result of the defendant’s misconduct.
(c) when the damage is the wrongful act of an independent third party. such as could not naturally be contemplated as likely to spring from the defendant’s conduct.
(d) where there comes in the chain of “causation” the act of a person who is bound by law to decide a matter judicially and independently, the consequence of his decision is too remote from the original wrong which gave him a chance of deciding.
Illustrative cases. (1) Hoobs v. L & S.W. Rly. Co. (1875) LR 10 Q Bill. In this case, the plaintiff along with his wife took tickets to go to ‘H’ by the last train at night. By the negligence of the porters they were put into the wrong train and carried of ‘E’. Since they were unable to obtain accommodation for the night at, ‘E’, they walked home, a distance of four miles and the night being wet the wife caught cold and medical expenses were incurred. It was held that the husband was entitled to recover damages in respect of inconvenience, but as regards damages for the illness of the wife it was regarded too remote consequence to make him entitled to recover damages.
(2) Municipal Board, Kheri v. Ram Bharosey, AIR 1961, All 450.-In this case, the plaintiff filed a suit for damages against Municipal Board, on allegation that the Board illegally granted a licence to one Teja Singh to setup a flour mill adjacent to his house with the result that as a consequence of vibration produced by the mill, his house got badly damaged. It was held that the Board is not liable. The injury caused to the house is remote. The injury or damage to the house is not the direct result of the unlawful act of the Board in granting the licence.
Tests of Remoteness of Damages. There are two main tests to determine whether damages are remote or not (1) The test of direct consequences (or the test of directness) (2) The test of reasonable foreseeability.
(1) The test of direct consequences (or the test of directness). According to this test, if a reasonable man could foresee that the plaintiff was likely to suffer some damage from the wrongful act of the defendant, he (i.e. the defendant) would be liable for all the direct consequences of it suffered by the plaintiff and it is immaterial whether a reasonable man could have foreseen the actual damages suffered by the plaintiff. In other words, foresight of a reasonable man is relevant to determine as to whether the defendant owed a legal duty to take care, but it is irrelevant whether the consequences of the breach of the legal duty were too remote or not.
The test of direct consequences was firmly established by the Court of Appeal in Re Polemis Furance Withy & Co. Ltd. (1921) 3 K. B. 560. Before this case, the prevalent test was that of reasonable foreseeability laid down in Righby v. Hewitt, (1850) 5 Exch. 240 and Green Land v. Chaplin, (1850) 5 Ex 242 which was later on accepted as the only reasonable test to determine the remoteness of the consequences.
Leading cases. In Re Polemis & Furnace Withy & Co. Ltd., the defendants chartered, the plaintiff’s vessel to carry a cargo which included a quantity of benzene or petrol. Some of the petrol cases leaked on the voyage and there was petrol vapour in the hold. While shifting some cargo at a port the stevedores employed by the charters negligently knocked a plank out of a temporary staging erected in the hold, so that plank fell into the hold and in its fall fall by striking something caused a spark which ignited the petrol vapour and the vessel was completely destroyed. It was held that as the fall of the plank was due to “direct consequence” of the negligence of the charters’ servants, the charters were liable for all the consequence of the negligence, even though those consequences could not reasonably have been anticipated and they were liable for the loss of the ship.
The meaning of the term “direct consequence” was considered by the House of Lords in Liebosch Dredger v. Edison, (1933) AC 149 and their interpretation limited the scope of the rule in Re Polemis case.
(2) The test of reasonable foreseeability. According to this test the essential point in determining liability for the consequences of a wrongful act of negligence is whether the damage is of such a kind as a reasonable man would have foreseen. The damages are too remote if a reasonable man would not have foreseen them.
Leading case. Overseas Tankship (U.K.) v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound Case) (1961) AC 388 at page 417: In this case, Morts Dock of Engineering Co. Ltd. (M. D. Ltd.) owned a wharf in the port of Sydney, where a vessel was being repaired and for this purpose some welding equipments were being used. The Wagon Mound, an oil burning vessel, was moored at another company’s wharf some 600 feet away from the respondents’ wharf for taking in bankering oil. A large quantity of fuel oil was splilt on the water near the respondent’s wharf. The molted metal from the respondent’s wharf fell on floating water which ignited the fuel oil on the water and the fire caused severe damage to the wharf and to other equipments.
The Trial Court, following the rule in Re Polemis, held that since O. T. Ltd. committed negligence in letting oil fall in sea, they were liable for all the direct consequences equences of the breach of their duty. On appeal the judicial committee of the Privy Council disapproved the rule laid down in Re Polemis and said that the test of “direct consequences” was not correct.
In this case Viscount Simonds criticised the dictum that foreseeability is a test for determining whether the defendant owes a duty of care to plaintiff and not for determining compensation for it has” perpetuated an error which has introduced much confusion into the law, “and that proposition is fundamentally false.
The advantage of the Wagon Mound case is that it provide a readily comprehensible test which is the same for each of the three component parts of the tort of negligence-duty, breach and damage.. The House of Lords in Hughes v. Lord Advocate, (1963) AC 837, considered the Wagon Mound case as correctly laying down the law. The Court of Appeal also in Doughty v. Turner Manufacturing Co. Ltd. (1964) 2 WLR 240, refused to follow Re Polemis and applied the ruling in Wagon Mound.
In Alok Nath v. Guru Prasad, AIR 1963 Orissa 21, the test of reasonable foreseeability has been considered and adopted. In this case the plots of land of the plaintiff and defendant were adjacent to each other. In the midst of the monsoon the defendant dug a tank in the side of his plot without any embankment and put the earth on the sides. The earth spread over the plaintiff’s adjoining plot on account of heavy rains and caused damage to the paddy crop. It was held that on the facts and circumstances of the case the defendant having not forseen the consequences of the act, which was, in the course of normal use of his land, he was not liable.
In Veeran v. Krishna Moorthy, AIR 1966 Kerala 172, a school child was injured while crossing the road by the defendant’s bus. The defendant’s bus driver could not see the children of school standing on the side because of a bus. The Court considered the test of foreseeability and allowed damages.
Exceptions to the Rule in the Wagon Mound. The rule laid down in the Wagon Mound case (i.e., reasonable foreseeability as the test of remoteness) circumstances: does not apply in the following
(i) where tort is related to strict liability:
(ii) where the claim is under the Fatal Accidents Act or for loss of services;
(iii) where claim involves breach of strict statutory duty;
(iv) when the claim is for fraud;
(v) when the damage, which has occurred, although foreseeable, is not damage of a kind against which it was the e duty duty of the defendant to guard:
(vi) when the defendant can not be said to have caused the damage, although that damage was in fact foreseeable, and a duty was owed to the particular plaintiff; or
(vii) when the damage which has been caused is damage of the same kind that might have been foreseen, but is greater in amount than could have been foreseen.
Vicarious Liability
Q. 10 (a). Define vicarious liability and explain the conditions in which such liability arises.
Or
Explain the various principles on which the doctrine of vicarious liability is based.
Ans. Definition.-Vicarious liability is the liability not for one’s acts, but for the wrongs committed by others. As a general rule, a man is liable only for his own acts but there are certain circumstances in which liabilities attach to him for the wrong committed by others. This is called ‘vicarious liability’ i.e. liability incurred for another’s wrong. The most common instance is the liability of the master for the wrong committed by his servants. When a person incurs liability for the tort of another person in which he had no part, it is called vicarious liability. In these cases liability is joint as well as several, and the plaintiff can file an action under tort against the actual wrongdoer himself as well as against his principal or master. In the words of Salmond. “In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of other, however, blameless he himself may be.”
Liability for another’s wrongful act or omission arises in three ways-
(i) Liability by ratification.
(ii) Liability arising out of special relationship.
(iii) Liability by abatement.
Principle on which the vacarious liability is based
The doctrine of vicarious liability is based on the following principles:
1. ‘Qui facit per alium facit per se’. The maxim means, “he who acts through another is deemed in law as doing it himself”. The master’s responsibility for the servant’s act had also its origin in this principle.
2. Respondent superior. Another maxim usually referred to in this connection is respondent superior, i.e. the superior must be responsible, or let the ‘principal be liable. In such cases, not only he who obeys but also he who commands becomes equally liable. This rule has its origin in the legal presumption that all acts done by the servant under his master’s express or implied authority, are in truth the act of the master. The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and an agent are jointly and severally liable as joint wrong-doers for any tort authorised by the former and committed by the latter.
Modern View- In recent times it is believed that the underlying idea of this doctrine is that of “expediency and public policy”. Salmond has remarked in this conection that “there is one idea which is found in the judgments from the time Sir John Holt to that of Lord Goddard, namely, public policy.” The modern view has been also approved in Imperial Chemical Industries, Ltd. v. Shatweel, (1964) 3 WLR 329 (HL), in which Lord Pearce observed “The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servants, and being better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all torts committed by his servant within the scope of it.”
Trilok Singh v. Kailash Bharti, 1986 ACJ 757 (P & H). In this case the owner of the motor-cycle was outside the country his, younger brother took the motor-cycle without his knowledge or permission and caused the accident. It was held that the younger brother could not be deemed to be the agent of the owner of the motor-cycle and the latter could not be vicariously liable for the accident.
In HDFC Securities Ltd. and others v. State of Maharashtra, (2017) 1 SCC 640, The Supreme Court has made it clear that the principle of vicarious liability is not applicable in criminal cases under the Indian Penal Code or for any offence alleged to be committed by a company. Therefore, if any statute contemplates creation of such a legal fiction, it must provide it specifically such as in case of Section 141 of the Negotiable Instruments Act.
Extent of liability of master for the tortious act of his servants
Q. 10 (b). Explain the extent of liability of master to a third person for the tortious act of his servant. Is master liable for fraudulent act of his servant?
Ans. Main contingencies of master’s liability. The master becomes liable for the wrong done by the servants in the course of their employment:
(1) Wrong committed in execution of master’s specific order. The wrong committed by the servant may be the natural consequence of something done by him with ordinary care in execution of his master’s specific orders.
In Indian Insurance Co. Association Pool, Bombay v. Radhabai (AIR 1979 M.P. 164), the driver of a motor vehicle belonging to the Primary Health Centre of the State was required to bring the ailing children by bus to the Primary Health Centre. The driver in the course of driving gave the control of the steering wheel to an unauthorised person. It was an authorised mode of doing the act authorised by the person. It was held that in such circumstances the Government, viz, the owner of the vehicle is vicariously liable for the negligence of the driver in permitting unauthorised person to drive the vehicle.
(2) Servant’s want of care in carrying out master’s business. The wrong may be due to the servant’s want of care or his negligence in carrying out the work or business in which he is employed.
In Ganga Sugar Corp. Ltd. v. Sukhbir Singh, (AIR 1974 All. 113), a jeep driver in the course of his employment left the ignition key in the jeep. In his absence a third person drove the jeep negligently, and caused the accident. The driver was held liable for damages for injuries caused to the plaintiff and ultimately the master was liable as the negligence of the driver in leaving the ignition key, in the jeep and driving the jeep by third person was the effective cause of the accident.
The master’s liability for the negligence of his servant is limited to cases in which the latter acts in the course of his employment. But if the servant, instead of doing that which he is employed to do, does something entirely new, i.e. something which he is not employed to do at all, the master will not be responsible for the negligence of his servant in doing it.
A master is not liable for the servant’s wrong committed while making an unauthorised use of master’s property for his (i.e. servant’s) own purpose.
(3) Excess of mistaken execution of a lawful authority.- Servant’s wrong may consist in excess or mistaken execution of a lawful authority. For this proposition two things have to be established. In the first place, it must be shown that the servant intended to do on behalf of his master something which he was, in fact authorised to do. Secondly, it has to be proved that the act, if done in a proper manner, would have been lawful.
In Secretary, H.P.S.E.B. v. Richard and others, (AIR 2006 H.P. 37) the driver of the Electricity Board took vehicle without the permission of the concerned authority and accident took place by the negligence of the driver. It was held that even if the act of the driver is regarded as beyond the scope of his duties or in violation of the order issued to him yet the fact that he took the vehicle unauthorisedly to the house of deceased leads to the conclusion that he performed his authorised duty in an unauthorised manner. Therefore, the Board is liable vicariously for such negligent act of his driver.
(4) Wilful wrong with intent to serve master’s purpose. The ‘wrong’ may be a wilful wrong, but done on the master’s behalf and with the intention of serving his purpose.
In Limpus v. London General Omnibus Co., [(1862) 1 H. & C. 526], a driver of the omnibus owned by the defendants had been expressly forbidden to race with, or obstruct, other omnibuses. Despite this, he obstructed the omnibus of the plaintiff, causing a collision which caused damage to it. He did this for promoting the defendant’s business (i.e. to carry passengers) competing with their rivals. The defendants were liable.
(5) Servant’s Fraudulent Act. The wrong may be due to servant’s fraudulent act.
It is immaterial that the servant’s fraud was for his own benefit and not for his master. The master is deemed to extend a tacit invitation to others to enter into dealings of transaction with the servant and that is why master is held liable for the fraudulent acts of servant.
In Lioyd v. Grace Smith & Co. [(1902) A.C. 719], the House of Lords laid down that the employer would be liable for all the frauds committed by his servant, whether for his own benefit or for the benefit to the employer, so long he was acting within the scope of its employment.