LAW OF TORTS

Tortum- ‘Twisted’
● A tort is a civil wrong between 2 parties, with unliquidated damages. It arises out of a breach of
duty, fixed by law.
● This breach is for the infringement of a right in rem (a right exercisable against the entire world
at large). This doesn’t involve breach of contract or breach of trust.
● The notion behind Compensation in tort law is to restore the person to the position they were
in before the breach (to as identical a position as possible). The principle is redressal, not
recovery.
● It is found in common law, but is uncodified.
● Tort is a law of Obligation.

TORT LAW (Right in Rem) CRIMINAL LAW (Right in Rem)

● Individual Centric, Both parties are ● Society-Centric, The state is a party

private

● Negligent act that results in harm/injury ● Offense/Wrongdoing committed against

to another for which they seek society at large, punitive measures are
compensation in court, under civil law- to taken against the perpetrator- state wants
allocate comp and prevent losses to set an example for deterrence

● Actus Rea (Predominant) ● Mens Rea + Actus Rea are both Req.

● Unliquidated damages, left to judges ● Unliquidated damages, Punitive

discretion. Punishment is decided by statute of law-
already predetermined

● The case can be withdrawn ● The case cannot be withdrawn, once

complaint is filed and FIR is registered

Overlap of Torts and Crime: Certain crimes are both tortious and criminal, such as assault, negligence,
defamation and nuisance. When the wrong seriously affects one person or affects a large enough group
then it is considered criminal- (Qualification is the intensity/scale of harm)
E.g- If a person obstructs a house, it is a tort, however if he obstructs a public road it is a crime.

ESSENTIALS: 1) Act/Omission of act That is recognised by law

2) This Act/Omission should’ve caused damage/breach of legal rights to/of the claimant

Conceptual Foundation of Torts

1) Duty of Care
2) Breach of Duty (Wrongful Act)
3) Damage
 4) Damages

● Tort law is a collection of causes of action- 3 components

1) Interest protected by law
2) Conduct which affects this interest and the law sanctions
3) Sanctions by which the law protects this interest

The two theories of tortious liability

LAW OF TORT LAW OF TORTS
(Propounded by Winfield) (Propounded by Salmond)
Principle Based Approach Category based approach

PN Bhagwati, CJ Holt-all favoured this theory Dr Jenks. Heusten-all favored this theory

● Wide-based theory, more scope of ● Pigeon Hole Theory (Must fit the writ-
adding torts, more scope of damage, wider one of the holes), lesser scope of adding
scope of remedy. torts and damage. Narrower scope of
remedy-A specific no of wrongs.

● Any wrongful act that causes legal ● Wrongful act that causes legal injury for a
injury comes under tort. specific tort in an established set of
torts recognised by law.

● The addition of new torts is very ● Addition of new torts almost has nil
accessible and easy. Generalisation of scope. Not complete restriction, but
Torts. unless a tort can fit as specified tort,
there is no need for new ones to emerge.

● Criticism: There is no demarcated set of ● Criticism: Limited scope doesnt allow

torts. Uniformity in evolving wrongs to be recognised as wrongs
jurisprudence is ? due to no specified because they don’t fall unto one of the
wrongs. narrow pigeon holes.

Case Laws: 1) Ashby v. White- Estb ‘Ubi Jus Ibi Case Laws: 1) Donoghue v Stevenson- The
Remedium’ manufacturer was held liable, but the seller
2) MC Mehta v UOI- Estb principle of Absolute wasn’t-(Injury caused was unforeseeable as bottle
Liability was opaque)
3) Pasley v Freeman- Estb the tort of deceit 2) Bollinger v Costa Brava Wine Ltd- it was held
4) Rylands V Fletcher- Estb the principle of Strict that for a person to claim damages it must be
Liability proved that a wrongful act falls under one of the
specified torts,

Glanville Williams - Just because law is made of pigeon-holes doesn’t mean new pigeon
holes cannot be made. From a narrow point of view, the second theory will suffice however from a
broad point of view the first is valid.

Incrementalism (gradual process of reconciliation btw the two)

Its a two pronged aspect- wide and narrow
o Adding more pigeon holes makes the law more dynamic, not static.
Gradual analysis of trajectory and then adding (maybe due to lack of precedents) -wide
Adding something in a wider ambit of law- narrow
o Pigeon-holes may themselves be dynamic and flexible. Eg. Many different kinds of
nuisance may come under the umbrella of nuisance.

Classification of Legal Rights

1) Absolute Legal Right
As name suggests, It is absolute in nature. It is actionable per se “Res Ipsa Loquitor” - The thing
speaks 4 itself. E.g- Trespass (Just by being on land that doesn’t belong to us, we commit the tort
of trespass. The movement the trespasser treads the ground- the right is violated.
2) Qualified Legal Right
There has to be a certain degree of damage for compensation to be allotted. It is not a violation of
right, per se. This however, doesn’t mean that the damage must be immediate-It could show up later
on as well. Here, it is also important to consider the magnitude of damage.
E.g- Car accident

Two-pronged test for liability (Lord Atkin)

1) Foreseeability
2) Nexus/Proximity

Categories of Torts
1) Intentional
E.g- Battery, Assault, Defamation, False Imprisonment

2) Negligent
E.g-Car Accidents

3) Strictly Liable
No intention but No excuse.
E.g-Abnormally Dangerous activities

➔ Damnum Sine Injuria- Damage without (Legal) Injury. This is NOT actionable.
Eg- 1) Gloucestor Grammar School
2) Bradford Corporation v Pickles –
[Link]
%20defendant's%20acts%20were,right%20to%20interfere%20with%20it.
3) Tomlinson v Congleton Borough Council – Congleton Borough Council had attempted to
turn a disused quarry into a beauty spot and country park by turning the quarry into an artificial
lake. The council prohibited swimming, recognising the lake to be dangerous for swimmers and
had prominent signs prohibiting swimming, as well as park rangers who sought to prevent
swimming. The claimant, ignoring these signs dived in and broke his neck. He sought damages
 in negligence under the Occupiers Liability Act 1957. The Court of Appeal held that he was a
trespasser and so the case fell under the Occupiers Liability Act 1984. DECISION: council was
not liable to claimant

➔ Injuria Sine Damnum- (Legal) Injury without damage. The test is not an assessment of damage
but of legal right violation.
Eg- 1) Ashby v White (Voting case)
2) Bhim Singh v State of J&K – the plaintiff, an MLA from J&;K, was wrongfully detained
from the police and was not produced before the magistrate. He was thus prevented from
attending the Assembly session and lost the right to personal liberty under Art. 21, and
thus could claim damages.

Liability
1) Fault Based Liability (Intentional)
2) Strict Liability (No Intention)

STRICT LIABILITY FAULT LIABILITY

● Strictly liable for any acts ● You cannot injure but for negligent,
intentional, reckless acts.

● No defences ● Defences available

● Burden of proof is on def ● Burden of proof is on plaint

● Based on precautionary losses – ● Based on economic losses- economic

normative theory (corrective justice) theory (econ analysis)

● Elements:
1) Dangerous thing likely to
cause mischief
2) Escape of this thing
3) Non Natural use of land

Analytical and Normative (not exclusive)

- Analytical:
1. Interpreting 2. Interpreting and Explaining

- Normative:
 1. Justification 2. Reforms - progressive

Instrumental and Non-instrumental

- Remedy social problems

- As an ‘instrument’, it is mathematical.

- Economic analysis – analyses costs.

Based on:
1. Precautions taken by defendant. Precautions have to be rational
2. Precautions to be justified. Cost justified. Eg. Business meeting missed because driver
stopped for long time waiting for someone to cross the road. Only slowing down
justified
3. When cost of precaution < cost of injury, only then is it cost justified.

NEGLIGENCE!
Breach of duty caused by omission/action which a reasonable and prudent man, guided by
those considerations which ordinarily regulate the conduct of human affairs would do, or
not do.

Parameters for reasonableness:

1. Burden of taking precautions
2. Likelihood of harm/ expected injury
3. Seriousness of harm

There are three constituents of negligence:

o A legal duty to exercise due care
o Breach of said duty
o Consequential damage arising due to breach

Negligence can have three broad meanings:

o State of mind, in which it is opposed to intention
o Careless conduct
o Breach of duty to take care that is imposed by common or statute law.

Negligence is both a
● mode of committing a tort (denoting mental element)- e.g: trespass
● tort in itself.

Element 1: Duty of Care

1) Langridge v. Levy
 Q: Can duty of care extend to 3rd parties?
Facts: Plaintiff received a gun from his father. His father bought the gun from the Defendant
[Levy], Defendant told the Plaintiff's father the gun was of high quality, Defendant was told that
the gun was for the use of the Plaintiff, gun was defective, exploded and blew off the son's hand.
The court refused to set a precedent by imposing a duty of care to third parties, because this
might result in indefinite liability [relate it to the prong of proximity] ('open the floodgates' and
everyone could sue). However, the court awarded damages to the plaintiff on the basis of fraud - a
duty arose that the gun should be safe because of the defendant's representation that it was. That
duty extended itself to the plaintiff because the defendant knew the plaintiff would be using it.

2) George v Skivington – Noxious hairwash bought and gifted to another.

Damage suffered by the user, raises a claim against the manufacturer. Claim
successful, damages awarded.

3) Sutherland Shire Council v Heyman – Plaintiff bought a house which had

bad foundations, sued the council for negligence in approving plans for the erection of the house
and in failing to ensure that the land will be inspected. This case held that all public authorities
could be held liable for negligence. It furthermore held that the law should develop categories of
negligence incrementally and with analogy, established categories rather than by a massive
extension of a prima facie duty of care restrained only by indefinable‘considerations’ which ought
to negate, reduce or limit the scope of duty.

4) Jacob Mathew v State of Punjab – Patient admitted to a hospital due to breathing

problems. Calls nurse at night saying he had problems breathing. Nurse calls a doctor
who arrives 20 minutes late however the patient recovered by then. After sometime the
patient again had problems breathing. No gas cylinders were nearby, and even after one
was found there were no doctors around to operate it. Patient dies from lack of oxygen.
Three principles of medical negligence:
a) Whether the doctor in question possessed the medical skills expected of an
ordinary skilled practitioner in the field at that point of time?
b) Whether the doctor adopted the practice in the case that would be adopted by
such a doctor of ordinary skill in accord with one of the responsible bodies of
opinion of professional practitioners in the field
c) Whether the standards of skills/knowledge expected of the doctor, according to
the said body of medical opinion, were of the time when the events leading to the
allegation of medical negligence occurred and not of the time when the dispute
was being adjudicated.

Trilogy of cases

5) Home Office v Dorset Yacht Co -

Juvenile offenders were put under supervision of officers. The officers left them unsupervised one night
and thus these juveniles escaped, stole yachts and caused damage by crashing these yachts. The 3rd
party supervising officers were held liable as it was reasonably foreseeable that the juveniles would
escape if left unsupervised. This case diluted the sense of proximity, however still showed a clear duty of
care and had enough proximity, thus causing the officers to be held liable.

6) Topp v London County Bus

Bus was left unattended overnight and keys were left in the ignition for the next driver to take his shift.
Thieves stole the bus and caused an accident. This caused a woman (Mrs Topp) to be killed. This
woman’s husband filed a case against the bus company.
Q: Did the bus company owe a duty of care?
A: defendants owed no duty of care to the claimant to guard against the voluntary actions of third parties
over whom the defendants had no control.

7) Donoghue v. Stevenson (1932, one fold test)

The court recorded a new duty of care- Manufacturer’s liability.
A product which he sells in a form that he intends to reach the ultimate consumer the way it left
him with no reasonable possibility of middle man hampering or external examination and with
the knowledge that the absence of reasonable care in putting up this product will result in
consumer’s injury/threat to life/property.
Laid down the neighbour principle – Neighbour test. A neighbour is one who is
reasonably foreseeable to get hurt, in close proximity.
Lord Atkin: “You owe a duty of care to your neighbour”
Definition of Neighbour: Someone closely/directly affected by an act/omision that one ought to
reasonably have in contemplation as to being affected when directing the mind to the act or omission.

8) Anns v Merton LBC (1977, two fold test) - The builder built a building which had sloping floors,
cracks and other defects. The plaintiffs claimed that the building was built on bad foundations out of
negligence, and thus they deserved compensation. The House of Lords decided that there was a duty of
care which was breached. Furthermore the Anns test was made on the basis of this case which determines
the duty of care based on a two fold test:
● Sufficient relationship of proximity based upon foreseeability
● Reasons as to why there should not be a duty of care.

# “Public Policy”
- Here it’s used in a -ve sense- the term is used to reduce the scope of duty of care
- In this case, public authority (mertons LBC) owed a certain standard of care and safety- however
it cant be expected to control negligence on part of the builders
- Q: . if there is a valid policy reason which exists then should your duty be reduced?
The precedent laid down in anns, answers in positive to the Q
1) Frivolous claims against public authority
2) Too much judicial control over exec

Since the powers granted to Merton are statutory, it qualifies as public law i.e. obligation to the public at
large. This makes them susceptible to several frivolous claims for things that did not fall within their
scope of functions. Hence, to protect their interests, public policy may be used to reduce the scope of their
duty.

9) Caparo v Dickman (1990, three fold test)- Fidelity plc was a target of takeover by Caparo.
Fidelity’s directors made an announcement as to the profits, on the basis of which Caparo went ahead
with the takeover. Mr Dickman’s report was entirely trusted. Once it took over it discovered that Fidelity
was in worse shape than projected by the announcement, and thus sued Dickman for negligence in
preparing accounts. For this case a three-fold test (pre-step1) was made:
A. Harm must be reasonably foreseeable as a result of the defendant’s conduct
B. Parties must be in a relationship of proximity
C. Must be fair, reasonable and just to impose liability.
Verdict: Caparo was not held a duty of care.
This test both establishes and limits liability.
● No duty is owed until the three fold test conditions were met. All three prongs to be proved before
implicating defendant.
● Liability is owed only towards determinate class (determined by jural correlates). So, in caparo-
the investors are an indeterminate class to the auditors (Mr Dickman). They had no knowledge
that the records are for making investments

10) Hedley Bryne v Heller & Partners- Hedley Byrne were advertising agents placing contracts on
behalf of a client on credit terms. Hedley Byrne asked their bankers to obtain a credit reference from
Heller & Partners (‘H&P’), the client’s bankers. The reference (given both orally and then in writing) was
given gratis and was favourable, but also contained an exclusion clause to the effect that the information
was given ‘without responsibility on the part of this Bank or its officials’. Hedley Byrne relied upon this
reference and subsequently suffered financial loss when the client went into liquidation. They sued Heller.
The court found that H&P’s disclaimer was sufficient to protect them from liability and Hedley Byrne’s
claim failed.
Held: There is no special relationship since the bankers could not have been expected to know that the
information they were providing was to be used by the company i.e. since the enquiry was made by one
bank to the other for its undisclosed client, no special relationship existed between them.
However, the House of Lords ruled that damage for pure economic loss could arise in situations where the
following four conditions were met:

1. (a) a fiduciary relationship of trust & confidence arises/exists between the parties;
2. (b) the party preparing the advice/information has voluntarily assumed the risk;
3. (c) there has been reliance on the advice/info by the other party, and
4. (d) such reliance was reasonable in the circumstances.

The House of Lords held that a negligent, though honest, misrepresentation (oral or in writing)
may give rise to an action for damages for economic loss in tort, because the law will imply a
duty of care. Duty of care arises for a negligent mistake when there is an assumption of
responsibility and loss is recoverable despite being pure eco loss
Hedley Bryne Test

1) There must be Duty of care based on spl relationship-btw the representor and representee
2) The rep in q must be untrue, inaccurate or misleading.
3) Representor shouldve acted negligently in making misrepresentation
4) Representee mustve relied reasonably on a negligent misrepresentation.
5) This reliance mustve been detrimental to the representee’s interests.

11) Heaven v Pender- Pender owned a dry dock. A shipowner contracted with Pender to use Pender’s
dry dock to paint his ship. As part of the contract between Pender and the shipowner, Pender supplied
staging, or scaffolding, that was erected around the ship. To support the staging, Pender used ropes that
had been previously burned and damaged. The shipowner hired Heaven, a painter, to paint his ship.
Heaven and Pender didn’t have a contractual relationship because Heaven was only hired by the
shipowner. While Heaven was standing on the scaffolding painting the ship, one of the burned ropes
supporting the staging broke. Heaven fell onto the dock and was injured.

Held: Whenever one person is by circumstances placed in such a position with regard to another, that
every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and
skill in his own conduct with regard to those circumstances he would cause danger of injury to the person
or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
Importance: established that a duty arises to use ordinary care to avoid danger.

12) MPRTC v BasantBai- Chunnilal was a driver in the employment of Central Provinces Transport
Services (C.P.T.S.). The C.P.T.S. was owned and run by the State Government till the formation of the
Madhya Pradesh State Road Transport Corporation in 1962. There were serious communal riots in
September 1956. During that period curfew was imposed and no person could move during curfew hours
except under a pass issued by the District Authorities.
On September 16, 1956, Chunnilal started from his house in the morning at about 6 O' clock for going to
the Jabalpur depot of the C.P.T.S. for joining his duty. He had been given a curfew pass (i.e. despite the
volatile situation, he was expected to work). Before he could reach the depot of the C.P.T.S. he was
stabbed by some miscreant in the abdomen, as a result of which he died.
Held: There existed a duty-situation and the management of the C.P.T.S. was liable in negligence for
not taking adequate precautions for the safety of the deceased, either by making arrangement for his
protection while he was on his way to work, or by closing the business temporarily, if no such
arrangement for the protection of the deceased was possible. Requiring an employee to come to work in
such a situation is itself such an act from which harm to the employee is foreseeable and the employee
being closely and directly connected with the act of requiring him to join his work, the employer must
have his safety in contemplation.

13) McLoughlin v O’Brian- The husband of the claimant (C) and their children were involved in a
road traffic accident at around 4 p.m. with a lorry driven by the first defendant and owned by the second
defendant. C, who was home at the time, was informed of the accident at around 6 p.m. by a neighbour,
who drove her to hospital to see her family. Upon arrival, she learned that her youngest daughter had
been killed and witnessed the nature and extent of the injuries suffered by her husband and other
children. C alleged that the impact of what she heard and saw caused her severe shock resulting in
psychiatric illness and brought an action in negligence against the defendants

Q: Is she sufficiently proximate to the even in q?

The duty of def was confirmed to extend to those who came upon the ‘immediate aftermath’ of an
incident, even if they do not see or hear the incident with their unaided senses.
Damages are not awarded for grief and loss. However, it shall be awarded for nervous shock caused by
negligence without showing the direct impact. The plaintiff may also recover damages for a nervous
shock if the injury caused to a person is their near relative.

14) Rothwell v Chemical Insulating and Co- Claimants were negligently exposed to asbestos by
their employers. They developed pleural plaques. These caused no symptoms. However, because the
plaques indicated the presence of asbestos fibres in the lungs, Claimants developed anxiety about their
conditions, fearing that they would eventually suffer from a life-threatening disease, such as asbestosis or
mesothelioma. Held:
1) The claimants had not suffered any form of compensable physical harm.
2) the mere risk of physical injury arising in the future was not a form of compensable harm.
3) There could be no recovery for mere grief or anxiety. These temporary emotional states the law
expects persons to endure without compensation.
4) The court rejected the claim that it was permissible to aggregate the various hurts that the claimants
had suffered – the pleural plaques and the anxiety derived from fear for the future – because the sum was
greater than its individual parts.

15) Bourhill v Young

-Motorcyclist drove negligently-excessive speed and collided w motor car-was killed
- Appellant- stood 45 ft away behind a stationary tramway car heard the noise of the collision (didn’t
witness, just heard) and got a nervous shock
- bc of this she couldn't carry on w her trade for sometime, even though she had no reasonable
apprehension of bodily harm to herself
- She was pregnant and her child was born stillborn, owing to injuries sustained by her
To amount in law to “;nervous shock”, the psychiatric damage suffered by the claimant must extend
beyond grief or emotional distress to a recognised mental illness.

Held: that the duty of the motor cyclist on the public road to other persons using it was to drive with such
reasonable care as would avoid the risk of injury (including injury by shock although no direct impact
occurred) to such persons as he could reasonably foresee might be injured by his failure to exercise
that care; However, the appellant was not within the area of potential danger arising as the result of his
negligence, and, accordingly, he owed no duty to her and was not guilty of negligence in relation to her.
16) Bolam v Friern Hosp Management Committee
The defendant was the body who employed a doctor who had not given a mentally-ill patient (the
claimant) muscle-relaxant drugs nor restrained them prior to giving them electro-convulsive
therapy. The claimant suffered injuries during the procedure. The claimant sued the defendant,
claiming the doctor was negligent for not restraining them or giving them the drug.
Q: How to assess the standard of care imposed on a professional defendant where a substantial
portion of professionals opposed a particular practice, while others did not?
A: McNair J set out the test for determining the standard of care owed by medical professionals
to their patients (sometimes referred to as the ‘Bolam test’). The professional will not be in
breach of their duty of care if they acted in a manner which was in accordance with practices
accepted as proper by a responsible body of other medical professionals with expertise in that
particular area. If this is established, it does not matter that there are others with expertise who
would disagree with the practice.

BREACH OF DUTY OF CARE

GENERAL DEFENCES AVAILABLE

1) Plaintiff the Wrongdoer

2) Necessity
3) Act of God
4) Statutory Authority
5) VNFI
6) Contributory Neg
7) Priv Defence (Imminent harm, absolute necessary force, appropriate extent)
8) Inevitable Accident
9) Acts causing slight harm (De minimus non curat lex)
External factors:
a. Likelihood of harm –
⮚ Duty of care increases; precautions to be taken increases.
⮚ Precautions to be taken only on reasonability and proximity
⮚ Lord Oaksey – “A normal/ordinary person does not take a precaution against
every risk. Life would not be possible”
⮚ Eg. - Boulton v. Stone - Ms. stone stood near a cricket ground. A ball flew over
the 17 ft wall and hit him. The batsman was 80 yards away. Due to the
likelihood of injury of people near such a well-established cricket club on the
road was so slight, as well as the likelihood of a person standing near the cricket
club to be hit that the club could not be held liable. In the 50 years of its estb,
only 5 balls have gone [Link] vulnerability of plaint is almost nil. If the
possibility of risk remains unforeseeable and the risk involved is sufficiently
slight, it does not require precautionary measures.

b. Magnitude of harm
⮚ MPRTC v. Basanti Bai
⮚ Paris v. Stepney Borough Council - A workman employed as a garage hand
had, to the knowledge of his employers, only one good eye. In working on the
back axle of a vehicle to remove a U-bolt, which had rusted in, he struck it with
a hammer and a metal chip flew off seriously injuring his good eye. He was not
 wearing goggles. He claimed damages against his employers in respect of that
injury on the ground that they were negligent in failing to provide and require
the use of goggles as part of the system of work. Held: in the case of a workman
suffering, to the employer's knowledge, from a disability which, though it did not
increase the risk of an accident occurring, did increase the risk of serious injury
if an accident should befall him, the special risk of injury is a relevant
consideration in determining the precautions which the employer should take in
the fulfilment of the duty of care which he owes to the workman.
⮚ Surendra Shetty v Sanjiva Rao – Drivers in school zones should have greater
responsibility to control speed of vehicle so as to stop the vehicle. In this case a
schoolboy of 9 years old suffered severe injuries when a car crashed into him.
The driver was held for rash and negligent driving.

c. Social utility of the defendant’s act

⮚ Eg. Ambulance. If he violates traffic rules, it’s alright, because it has social
utility – saving lives.
⮚ Degree of care more on you than the defendant.

d. Emergencies
⮚ Same as the above but with duty of care.
⮚ Eg. House on fire, fire truck arrives. Firefighters can trespass on other’s
properties – no compensation.

e. Relative costs to avoiding the harm

⮚ Eg. Factory floor slippery. Instead of cleaning the floor since it is costly, or
putting up a notice, paying compensation is viable instead.
Latimer v AEC Ltd - Heavy rainstorm in factory, causing oily substance to spread. Caused floor
to be slippery, thus the employees spread sawdust. Plaintiff slipped anyway, however the
defendant acted responsibly and thus were not held liable.

f. Hurly burly of life (Whirlwind of busy life)

⮚ Carmarthenshire County Council v Lewis
- Examined the liability of a local authority for road users injured whilst
trying to avoid hitting a young child who had escaped from school
- The claimant in this matter was the wife of a lorry driver killed whilst
trying to avoid a child in the road. The child was at school when his
teacher, intending to take him out of school, prepared him to leave.
However, before she was able to take the child, another child fell and
was hurt. Whilst the teacher was attending to the hurt child and was
distracted, the other child wandered out of the school building and
through an open gate onto the road. On seeing the child, the claimant’s
husband swerved his lorry in order to avoid hitting the child, crashed into
a telegraph pole and was killed. Negligence was found against the
 teacher at first instance and was upheld on appeal. The council appealed
to the House of Lords.
Q: Whether a local authority had a duty of care to road users to the extent that required it to
prevent young children in its care from straying onto the road?
Held: The duty owed by the teacher was that of a careful parent and, in the circumstances, the teacher
had acted in a manner consistent with this duty. The accident was not found to be the teacher’s fault.
However, the fact that the child was able to leave the school so easily as soon as the teacher’s back was
turned indicated that there was a lack of proper precautions in place to avoid this happening. In the
absence of a proper explanation for the child’s presence on the road, the council must be held liable for
the cause of the crash. The council had a duty, not only to the child, but also to road users affected by
the child’s actions. The appeal was dismissed.

g. General practices of the community

Internal factors:
o Attributes pertaining to the individual
o Situation based

a. Child defendants
⮚ Mullin v. Richards - Plaintiff and defendant were fencing with plastic rulers.
One shattered and hit the plaintiff’s eye, causing blindness in that eye. She
brought a claim, however it was rejected as the standard of behaviour of
reasonably prudent 15-year olds would not include this much foresight and
thus they were not held liable. Standard to be expected not the standard of care
of adults but that of a 15-year-old.

b. Intelligence and Knowledge

⮚ Knowledge of a prudent person

c. Skill
⮚ Doctors/Lawyers have higher standard and duty and degree of care.
⮚ The std of care is proportional to the skill posessed
⮚ e.g Wagon Mount

d. Disability and Infirmity:

⮚ Roberts v. Ramsbottom - Ramsbottom drove into Roberts as she was emerging
from her car, injuring her, her daughter, and wrecking her car. Shortly before he
had rear-ended a van and knocked a boy off his bicycle, he had had a minor
stroke that caused him to lose control of his actions, which was responsible for
these actions. He had no reason to expect that he had had a stroke as he had
never had any previous symptoms and did not realize at the time that he
was unfit to drive. Ramsbottom claimed that he was acting reasonably and was
not responsible for his actions as a reasonable person would not expect to be
impaired in this way. The courts held that due to him having some
 consciousness, he was liable for his actions. In order to escape liability there
must be a total loss of consciousness. OVERTURNED by below

⮚ Mansfield v. Weetabix - Tarleton, an employee of Weetabix, did not know that

he had a condition that caused his brain to malfunction when his blood sugar was
low. He caused a series of accidents after driving while hypoglycemic. He was
found liable at trial which he appealed, which he won. The court found that the
employee could not know that his actions were impaired and thus could not be
held liable. This thus overturned the Roberts v Ramsbottom case.

e. Special knowledge concerning the defendant

paris v stephany borough council

f. Defendant’s ability to foresee the acts of the third party

topp v london county bus

- Res Ipsa Locquitur

o Prima Facie case of negligence, direct or circumstantial evidence that the defendant was
negligent.
o Mere proof that an accident occurred is not enough, but the peculiar circumstances
constituting the accident in a particular case may proclaim the clear negligence of the person
and thus fall under the maxim of res ipsa loquitor.
o Escola v. Coca Cola - Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca
Cola exploded in her hand. She alleged that defendant company, which had bottled and
delivered, the alleged defective bottle to her employer, was negligent in selling "bottles
containing said beverage which on account of excessive pressure of gas or by reason of some
defect in the bottle was dangerous and likely to explode." This appeal is from a judgment
upon a jury verdict in favour of plaintiff.
Held: Although it is not clear in this case whether the explosion was caused by an excessive
charge or a defect in the glass, there is a sufficient evidence showing that neither cause would
ordinarily have been present if due care had been used. Further, defendant had exclusive
control over both the charging and inspection of the bottles. Accordingly, all the
requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply
an inference of negligence are present.

o Municipal Corporation of Delhi v. Subhagwanti - Three suits for damages were filed by the
respondents as heirs of three persons who died as a result of the collapse of the Clock Tower
in Chandni Chowk, Delhi, belonging to the appellant-Corporation, formerly the Municipal
Committee of Delhi. The trial court held that it was the duty of the Municipal Committee to
take proper care of buildings so that they should not prove a source of danger to persons
using the highway as a matter of right. On appeal, the High Court held that the principle of
res ipsa loquitur applied to the case and considered that it was the duty of the Municipal
Committee to carry out periodical examination for the purpose of determining whether
 deterioration had taken place in the structure of the building and whether any precaution was
necessary to strengthen it.
Held: The High Court was right in applying the doctrine res ipsa loquitur as in the
circumstances of the case the mere fact that there was a fall of the clock tower, which was
exclusively under the ownership and control of the appellant, would justify raising an
inference of negligence so as to establish a prima facie case against the appellant.

o CESCO v Prabhati Sahoo- Death by electrocution when a live conductor wire hanging at a
lower height which does not have the electricity cut off. Thus the case is one of clear res ipsa
loquitor.

o Pilutla Savitri v GK Kumar- Plaintiff’s husband was relaxing in front of his tenanted
premises when a portion of the construction fell on him, killing him. Res ipsa loquitor was
applied and the defendants, who were the construction workers, were held liable.

DAMAGE- The harm done to person/property

DAMAGES- The compensation awarded to the injured party for harm done

CAUSATION

DAMAGE

CAUSATION IN FACT

➔ But-For test (Sine qua non-indispensible req)

➔ Not universally applied

Barnett v Chelsea
This case applies the "but for" test of causation. The claimant was the estate of a patient who had
died in the defendant’s hospital. The deceased had unknowingly drank tea laced with poison. He
went to Accident and Emergency complaining of severe vomiting. The attending doctor did not
examine him. Instead, the doctor told him to go see his GP. The deceased died five hours later.
Expert evidence indicated that even if he had been treated, the man probably would have
died. The claimant sued in negligence.
The Court held for the defendant. While the defendant owed the deceased a duty of care which
they breached, the man would have died in any event. Causation was therefore not
established. Factual causation between the breach and the injury must be established before a
defendant is liable in negligence. If but for the breach, the claimant would still suffer the injury,
then causation is not established. The burden of proof is on the claimant to establish causation.

Hotson v East Berkshire Health Authority – (loss of chance)

A 13-year-old boy fell and injured his hip. Incorrect diagnosis was made, and the boy was later
found to be suffering from avascular necrosis. If it had been discovered earlier, then there was a
75% chance of the boy suffering a hip disability due to the disease, however since the disease
was not discovered till too late, there was no chance of recovery. The boy’s family sued for
medical breach of duty, stating that they denied the boy the 25% chance of recovery. The judge
held that on the balance of probabilities, the boy was likely to become disabled even if the
disease was spotted earlier, and thus the plaintiff failed on the issue of causation.

o Gregg v Scott – (hypothetical conduct of the claimant)

Reaffirms previous case. The defendant, Dr Scott, misdiagnosed negligently the plaintiff's
malignant cancer, stating it to be benign tissue. This had the effect of delaying Mr Gregg's
treatment by nine months, reducing his chances of surviving ten years from 42% to 25%.
The plaintiff argued that the 17% loss was owed to him by the defendant. Also limited oppt
for medication. While the judges in a 3-2 ratio decided in favour of the defendant, Lord
Nicholls dissented, stating that a patient should have an appropriate remedy when he loses
the very thing it was the doctor's duty to protect and to this end the law should recognise the
existence and loss of poor and indifferent prospects as well as those more favourable. In
original assessment, one couldnt make the assumption.

o Bonnington Casings v Wardlaw – (Material contribution to the harm)

The claimant contracted pneumoconiosis by inhaling air which contained minute particles of
silica during the course of his employment. The defendant was in breach of a statutory duty
in failing to provide an extractor fan. Had they installed an extractor fan the number of
particles of silica that the claimant was exposed to would have been reduced, however, there
would still be some particles present. There were thus two possible causes:
* the guilty dust (tortious), which should not have been in the working environment
* the innocent dust (non tortious) which would have been present in any event.
The burden of proof laid on the plaintiff to show that the dust had a material contribution,
and but for the defendant’s lack of installing a fan, the defendant would not have contracted
the disease. The q is jot which dust contributed, it was ‘did it contribute materially to this
test?’ Thus, the court decided that the dust was material enough to warrant compensation.

o McGhee v National Coal Board – (Material contribution to the harm) DIDNT APPLY BUT
FOR
James McGhee was employed to clean out brick kilns and developed dermatitis from the
accumulation of coal dust on his skin. Because there were no shower facilities at his
workplace, he would cycle home each day, increasing the risk that he would get dermatitis.
 Had his employer provided shower facilities, the coal dust could have been washed off before
cycling, reducing the risk of contracting dermatitis. Due to the limits of scientific knowledge,
it was impossible to rule out the possibility that he hadn't contracted dermatitis during the
non-wrongful exposure to brick dust while working in the kiln. The House of Lords held that
the risk of contracting dermatitis was substantially increased due to a lack of showering
facilities, and thus the defendants were held liable. The implication of the case was significant
as it meant that a claimant need not demonstrate that the defendant's actions were the "but
for" cause of the injury, but instead that the defendant's actions materially increased the risk
of injury, and thus damage, to the claimant.

CAUSATION IN LAW

➔ Novus Actus Intervienens– New act intervening. The chain of causation is broken. Even if the
defendant was negligent, there is no liability if there was a new, intervening act that breaks the
chain of causation between the original negligent act and the damage suffered by the claimant.
➔ The snapping of chain of causation can be caused by either natural event or human action.
● Human action – human action does not sever the connected sequence of acts, and thus
the mere human action does not prevent the sufferer from claiming damages from the
original wrongdoer. Secondly, it must be shown that to break the chain of causation, there
is some action that is unwarrantable and unreasonable. Thus a reasonable act done by
a person in consequence of the wrongful act of the defendant which results in further
damage does not break the chain of causation.

o Natural events - when negligence is followed by a natural event of such magnitude that it
erases the physical effects of the original negligence, the defendant’s liability ceases at the
moment in time when the supervening condition occurs.

o Claimant’s own conduct – When the claimant himself acts unreasonably and negligently,
causing damage to himself, the chain of causation is considered broken and not the defendant for
the first negligence.

(e.g) McKew v Holland & Hannen & Cubitts - the defendant’s negligence caused an
injury to the claimant’s leg that significantly weakened it. When later attempting to
descend a steep staircase without a handrail or assistance, the claimant broke the ankle in
the same leg. The claimant knew that his left leg might give way suddenly. He could see
that these stairs were steep and that there was no handrail. If he had given the matter a
moments thought, he would have realised that he could only safely descend if he went
extremely slowly and carefully so that he could sit down if his leg gave way.
Alternatively, he should have waited for assistance. But recklessly he chose to descend
and, when he fell, he could not stop himself. That was taking an unreasonable risk and,
therefore, his behaviour broke the chain of causation.
Third Party/sequential causes - Whether the acts of a third party break the chain of causation depends on
whether the intervention was foreseeable. The general rule is that the original defendant will be held
responsible for harm caused by a third party as a direct result of his or her negligence, provided it was a
highly likely consequence.

● Baker v Willoughby – Baker was knocked down by the defendant’s car, leaving him with a stiff
ankle of his left leg and reduced mobility and income. After the accident but before the trial, Mr
Baker was shot by a robber in his injured leg and the leg had to be amputated. The defendant
argued that the injuries he had caused to Mr Baker were obviated by the later accident.
His argument was based on causation: the shooting was an intervening event, which was not
caused by his negligent driving and the amputation of the man’s leg meant that the defendant
could not be held accountable for any loss, since the damage he had done previously no longer
existed. The court while rejecting such arguments did undercompensate Mr. Baker.

● Jobling v Associated Dairies - Associated Dairies negligence caused Jobling a back injury that
subsequently limited him to light work. After this Jobling developed a spinal disease unrelated
to the accident that caused him to be totally incapable of work. At the lower courts he was granted
damages up to the point he had to withdraw from work which he appealed. The court held that the
fact that even if there had not been an accident there would still have been losses that cannot be
disregarded. Therefore, it seems like the damages will be limited to the period before the
disease was discovered, or at least reduced. However, he goes on to say that in cases where
there are two subsequent tortfeasors, it is unreasonable if the damage assessment to the second
party does not take the previous incapacitation into effect. The total damage paid to Jobling must
be the overall damage from all of the injuries, but Associated Dairies should share this burden
fairly depending on the circumstances. Thus subsequent tortfeasors must have their damages
assessed while taking the first injury into account.

● Smith v Bush (Similar to Hedley v Heller)

This case extended the duty of care for negligent misstatement to third parties who are not parties to a
contract nor direct recipients of advice. C obtained a mortgage with a bank for the purpose of purchasing
a property

● The bank commissioned a report from D surveyor, C paid the bank for the cost of the report
● The report led to C purchasing a house which was later found to need expensive repair owing
to subsidence
● The report contained a disclaimer that neither the bank nor surveyor warranted that the report
would be accurate
● Duty of care established through a sufficiently proximate relationship based upon payment by the
plaintiffs for the survey and knowledge by D of the high likelihood that the Cs would rely on the
survey without obtaining any independent advice.
● Mitchel v Glasgow city council

➔ Remoteness of damage
➔ A defendant is only liable for consequences which are not too remote from his conduct. No
defendant can be made liable ad infinitum for all consequences that follow from his wrongful
acts.
➔ There are two tests to determine remoteness:
1. Reasonable foresight – if the consequences of the wrongful act could have been
foreseen by a reasonable man then they are not too remote.
2. Test of directness – A person is liable for all the direct consequences of his wrongful
act, whether he could foresee them or not, because consequences that directly follow an
act cannot be too remote.

- Greenland v. Chaplin (1850) - Test of reasonable foresight – “man is expected to guard against
all reasonable consequences”. The plaintiff was a passenger on board a steam-boat called the
“Sons of the Thames,” which was going from Westminster to London Bridge. The defendant's
steam-boat, called the “Bachelor,” was going the same way, and, as the vessels approached the
Adelphi Pier, the “Bachelor” struck the “Sons of the Thames” on the bow, where the anchor was
carried, and, in consequence, it fell upon and broke the plaintiff's leg. There was conflicting
evidence as to the degree of negligence attributable to the respective steam-boats, and especially
as the propriety of the mode in which the anchor on board the “Sons of the Thames” was carried
in the bow of the vessel. Held: The general rule of law is, that although there may have been
negligence on the part of the plaintiff yet, unless he might, by the exercise of ordinary care, have
avoided the consequences of the defendant's negligence, he is entitled to recover. Thus, as per the
jury, the plaintiff was able to recover damages. However, the judges believed that the negligence
which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he
could by ordinary care have avoided the consequences of the defendant's negligence. In certain
cases if the acts of the other party were not foreseeable, they could not have been anticipated by
the other party and the consequences of such nature cannot be assumed. A person is expected to
anticipate and guard against all reasonable consequences, but that he is not, by the law of
England, expected to anticipate and guard against that which no reasonable man would expect to
occur.
“man is expected to guard against all reasonable consequences” – wrongdoer only
responsible for damage intended by him, and if not intended, he is liable for any damage
which is a natural and probable consequence of his act. - REMOTENESS

- Re Polymus case - Messrs. Polemis and Boyazides, the owners of the Greek steamship
Thrasyvoulos (hereinafter called the owners), chartered the steamship to Furness, Withy & Co.,
Ld. (hereinafter called the charterers), for the period of the duration of the war. During the voyage
the tins leaked, and in consequence there was a considerable quantity of petrol vapour in the hold.
At one of the ports of call it became necessary for the stevedores, who were employed by and
were the servants of the charterers, to shift some of the cases of benzine, and for that purpose the
stevedores placed a number of heavy planks at the forward end of the hatchway, which they used
as a platform for transferring the cases from the lower hold to the 'tween deck. When the sling
containing the cases of benzene was being hoisted up, owing to the negligence of the stevedores
the rope by which the sling was hoisted or the sling itself came in contact with the boards, causing
 one of the boards to fall into the hold, and the fall was immediately followed by a rush of flames,
the result being the total destruction of the ship. The shipowners claimed from the charterers as
damages the value of the ship. Held: As the fall of the board was due to the negligence of the
charterers' servants, the charterers were liable for all the direct consequences of the negligent act,
even though those consequences could not reasonably have been anticipated; and they were
therefore liable for the loss of the ship by fire.
“If a reasonable man would have foreseen any damage likely to result from his act, then he is
liable for all direct consequences of it, whether he could have foreseen it or not”

DIRECTNESS
- Wagon Mound 1 and 2:
1. Wagon Mound 1, i.e. Overseas Tankship (UK) Ltd. V. Morts Dock & Engineering Co. -
Defendants carelessly discharged oil from their ship into Sydney Harbour. The oil was
carried by wind and tide beneath Claimants’ wharf, 200 yards away. After being advised
that they could safely do so, Claimants continued welding operations on their wharf.
Later, molten metal from the welding operations, when fanned by the wind, set fire to
some cotton waste or rag floating in the oil beneath the wharf. The burning cloth ignited
the oil and fire severely damaged the wharf. It wouldnt have happened if the cotton
wasn’t there- it was v unforeseeable. Defendants neither knew nor ought to have known
that the oil was capable of being set alight when spread on water. Held: The damage was
too remote to have been foreseeable

2. Wagon Mound 2, i.e. Overseas Tankship v. Miller Ships Co. - The respondents had two
vessels undergoing repairs at a wharf in Sydney Harbour. The owners of the wharf in the
course of doing the repairs were carrying out oxy-acetylene welding and cutting, work
which was apt to cause pieces of hot metal to fly off and fall into the sea. The appellant
was charterer by demise of a vessel, the Wagon Mound, which had been taking
bunkering oil from another nearby wharf. By the carelessness of her engineers a large
quantity of that oil overflowed from the Wagon Mound on to the surface of the water and
drifted to and accumulated round the former wharf and the respondents' two vessels. It is
such a hugeee amt of oil spill and it’s a continu process- eng mustve been aware of that
amt of oil spillage. As a result, that oil was set alight. The fire spread rapidly and caused
extensive damage to that wharf and to the respondents' two vessels. The respondents
brought this action against the appellant for damages suing alternatively in nuisance and
negligence.
▪ In 1, (DIRECTNESS TEST) the reasonable foreseeability test was adopted. Issue:
whether the fire was a reasonable foreseeable consequence of the defendant’s
consequences? Held: Injury, though a direct result of the negligence was unforeseeable
and hence liability does not attach.
▪ In 2, (REASONABLE FORESEEABILITY), If the party did nothing to prevent injury,
liable for foreseeable consequences, even if consequences are remote. Issue: Whether the
fire which was found to be foreseeable to the reasonable man was reasonably foreseeable
to the extent that liability attaches? Held: If a reasonable man can foresee and prevent
risk, then he is liable for damages. Fire could only have happened in exceptional cases,
but since risk was foreseeable though remote, defendant bore duty to prevent risk.
END-SEMESTER

RIGHTS OF THE UNBORN

● When a child is in the pre-natal stage such that it could live on its own separated from the mother,
then the baby could be considered a separate entity and could sue on its own for any injuries to
the baby in the womb. Before such a time the baby is part of the mother and thus cannot raise any
claims. If science cannot identify if the baby is born with deformities, then the law cannot make
any statements.

o Mckay v Essex Area Health Authority’

Q: Whether a child has a cause of action for being allowed to enter life damaged ?

A: No, goes against principles of public policy

- A doctor failed to advise an abortion in a case where if the pregnancy went through, the child
would almost certainly be born with a disability.
- The unborn child was not allowed to have any claim. Public policy precludes such a claim as
there is no way of balancing the merits of no life against the benefits or disadvantages of a
disabled life.
- Doctors are not under a duty of care to the foetus to terminate its existence if it was disabled: all
they could do was give advice to the mother
- “I am…compelled to hold that neither defendant was under any duty to the child to give the
child’s mother an opportunity to terminate the child’s life….To impose such a duty towards the
child would, in my opinion, make a further inroad on the sanctity of human life which would be
contrary to public policy”
- “The compensation must be based on a comparison between the value of non-existent…and the
value of her existence in a disabled state…But how can a court begin to evaluate non-existence…
No comparison is possible and therefore no damage can be established which a court could
recognise”
- The child’s claim was contrary to public policy as being a violation of the sanctity of human life

o Dobson v Dobson

- Cynthia Dobson was in the 27th week of her pregnancy. While she was driving in a snowstorm
she lost control of her vehicle and struck an oncoming vehicle. It is alleged that the accident was
caused by her negligent driving.
- Her unborn child Ryan Dobson was allegedly injured and was delivered prematurely by caesarean
section later that same day. Ryan suffered from permanent mental and physical impairment,
extending to suffering from cerebral palsy.
- Ryan’s grandfather and litigation guardian on behalf of Ryan raised a tort case against Cynthia,
claiming that her negligent actions caused damage to Ryan.
 - The Supreme Court ruled in favour of Cynthia, using the defence of public policy as reasoning for
their judgement.
- Court Held: To impose crippling boundaries on mother is unjust and mom not liable.
- Lifestyle choices also have to be kept in consideration. Sometimes these choices go out of
control (substance abuse) so to impose a duty of care on alr vulnerable mom would be
inappropriate. Rehab/Asst- rlly needed and that’s what the state must provide.
- Majority had reservations ab judicial scrutiny into women’s lifestyle choices-would the court be
breaching into women’s choices?
- Restricts women’s choices on health-causes harm and restricts movement & Judicially defining
right std of conduct is very hard.

o Union Carbide Corporation v Union of India -

- Alongside the other disastrous devastations that hit the area, it was discovered that multiple
children suffered from congenital heart disease due to the pregnant mothers being exposed to
toxic gases, thus causing the toxicity to affect the children as well.
- Thus the Supreme Court held that those who were unborn at the time of the Bhopal gas leak and
were thus adversely affected, provided the defects could be traced back to the exposure to toxic
gases, would be entitled to compensation under their pre-natal rights

FETAL RIGHTS VS MOTHER’S RIGHTS

● The increasing no of cases filed against mothers by their offsprings might discourage women
from motherhood/pregnancy and may increase abortion.

o McFarlene v Tayside Health Board (1999)

- Mcfarlene decided that 4 children was enough for the fam and had a vasectomy
- Tayside advised saying there’s no need for contraceptive use anymore
- Following this, Mrs McF bcm preg. They bought suit against Tayside claiming financial cost for
bringing up the child (pure economic loss)
- Allowing the claimants’ appeal in part; the mother was entitled to damages for the pain, suffering,
and inconvenience of pregnancy and childbirth and to damages for extra medical expenses,
clothing, and loss of earnings associated therewith.
- The House of Lords unanimously refused to allow the parents’ claim for the costs of raising the
child.

o Cattanach v Melchior

- Mrs Kerry Anne Melchior had seen the obstetrician and gynaecologist Stephen Alfred Cattanach, and
asked for a tubal ligation procedure to be performed on her, citing financial inability to support a third
 child. She recalled having one ovary removed when she was fifteen years of age and that her fallopian
tube had at that time also been removed. While performing the operation Dr Cattanach could see no
evidence of a second fallopian tube and so assumed that Mrs Melchior's recollection was accurate.
- Some time after the operation Mrs Melchior became pregnant and gave birth to the healthy baby
Jordan.
- brought actions against, inter alia, Dr Cattanach for negligence- applied for damages for loss and
damage caused by pregnancy and birth, Mr Melchior applied for damages for loss of consortium and
they jointly applied for damages for the cost of raising and maintaining the child to majority. (pure
economic loss)
- Court Held the negligent doctor could be held responsible for the costs of raising and maintaining
a healthy child.
- The opp of Mcfarlene was held
- Posn the Aus HC took was: wrongful preg so parents were entitled to costs of raising the child till
adulthood (18)

o Stallman v Youngquist (1988)

- Bari Stallman (Def) was involved in a car accident with Youngquist (def) when Bari was five
months pregnant with her child, Lindsay Stallman. Lindsay sustained permanent injuries from the
collision.
- Lindsay’s father, Mark Stallman (plaintiff), brought suit against Bari and Youngquist for
negligence on Lindsay’s behalf. Bari filed a motion for summary judgment, arguing that she
could not be held liable for unintentional prenatal injuries to her daughter.
- Court refused to recog action against mother for unintentional infliction of prenatal injuries
- Issue of fetal rights to permit fetus to sue mom in tort- due to actions of mom when she was preg.
Court suggested that fetal protection can be discussed in terms of state policy interest/action
rather than mom (State should be able to assert its right to prohibit conduct likely to result in
injury to fetus)

DUTY TO THE RESCUER

When the plaintiff voluntarily takes on a risk to rescue someone from imminent danger, the defendant
cannot take up the defence of volunti non fit injuria, and would thus be held liable to compensate the
rescuer.

● The person who creates mischief owes a duty of care to the rescuer. It’s foreseeable that someone
would save: “Danger invites rescue and the cry of distress is a summon to relieve”
● Rescuers- policemen, firefighters, ambulance drivers, bystanders

o Haynes v Harwood –

- Defendant left a horse van in the street unattended. Children throw stones at a horse, causing it to
bolt and thus posed grave danger to people on the road.
 - A police constable attempted to stop the horses and suffered injury. Since the case was a ‘rescue
case’, the defence of VNFI was not held and the defendants paid compensation to the constable,
considering that the injuries were natural and probable consequences of the defendant’s
negligence.

o Cutler v United Dairies London Limited –

- Horse belonging to the defendant escaped into a field (priv land) Driver attempted to pacify it and
shouted for help. Plaintiff attempted to help, injured in the process.
- Defence of VNFI held, plaintiff suit failed as there was no need to take any risk and thus the
plaintiff was liable for the risk he took.
- Held: Any negligence of the defendants did not contribute to the accident. The plaintiff’s actions
amounted to a novus actus interveniens, and since he must have expected to run a risk of injury,
they also allowed the defence of volentia no fit injuria.

o Brandon v Osborne Garett –

- Skylight in a shop collapses. Wife observes glass falling towards the husband, reasonably
believing him to be in danger, instinctively pulls him away and thus strains her leg. In an action to
recover damages, the wife was held to be entitled to compensation.

o Ogwo v Taylor –

- Fireman while rescuing people from a burning building suffers severe burns and permanent
scalding. The defence of volunti non fit injuria not applicable, fireman entitled to compensation
under duty of rescuer principle.
- The defendant had negligently started a fire at his home by using a blow torch on the fascia
boards whilst attempting DIY home improvements. The plaintiff, a fire fighter, entered the
property wearing protective clothing in order to extinguish the blaze. The fire was successfully
put out, however the plaintiff suffered severe burn injuries from scalding steam which resulted
from the fire.
- The issues:

i) whether injuries suffered\in the course of fighting a negligently started fire were foreseeable?

ii) was any principle of public policy which prevented a fire fighter from claiming damages for injuries
suffered in the course of their work.

- The court held that there was no special principle which prevented firemen from claiming
damages for injuries which they incurred whilst fighting a fire which had been negligently started.
- The mere fact that they did this in the course of their work and in the provision of a public service
did not automatically render the injuries outside the scope of the defendant’s duties.
- Moreover, the injuries were foreseeable as the defendant should have known that where a fire
was started negligently, the fire brigade would be called and that fire fighters might be exposed to
 the risk of injury whilst putting it out. This being so, it did not matter that the specific nature or
the severity or the injuries incurred in this case was not foreseeable.
● Is the rescuer a foreseeable claimant?
Even though the claimant volunteered to be in posn to “save”, they’re not an unforeseeable
claimant-may not know who they r, but they def r in contemplation. So, voluntary assumption of
risk doesn’t apply
Law says that rescuers r foreseeable claimants to whom duty is owed personally- not just phy but
also psych injury

NERVOUS SHOCK AND PSYCHIATRIC INJURY

● Mental suffering following a foreseeable physical injury is routinely compensated while awarding
compensation for physical injury.

● To amount in law to nervous shock, the psychiatric damage suffered by the claimant must extend
beyond grief or emotional distress to a recognised mental illness.

● A person who intentionally and without good reason inflicts emotional distress on someone will
be liable for any psychiatric and mental injuries that follow.

● The impact theory states that the claimant should be in a foreseeable geographical area of the
injury which resulted in the shock. If the person is not within the vicinity of the accident, then
there can be no claim. This theory limited to the immediate vicinity.

● The courts identify the area of shock theory as the damages being recoverable as long as the
claimant is within the reasonably foreseeable area of shock.

Victims of mental suffering come under two types:

o Primary – Participants in the event, in the actual area of danger of receiving foreseeable personal injury
but only suffer a recognisable psychiatric illness and not any personal injury. These victims are entitled to
receive compensation for mental suffering which amounts to a recognisable psychiatric illness even if the
illness was not foreseeable.

o Secondary – Not participants or in the actual area of danger but still suffer recognisable psychiatric
illness.
They are allowed compensation if the conditions of the ‘control mechanism’ are satisfied:
(1) The plaintiff (victim) must have close ties of love and affection with the main (primary) victim, such
close ties extend to spouse, family but do not extend to employer-employee relationship
(2) Plaintiff must be present at the accident or its immediate aftermath
(3) Psychiatric injury must have been caused by direct perception of the accident or its immediate
aftermath and not upon hearing about it from someone else. A plaintiff who was a rescuer and suffered
psychiatric injury but was not within the range of foreseeable injury would be treated like any other
secondary victim and thus must prove the three conditions of the control mechanism to be entitled to
compensation.

o Alcock v Chief Constable of South Yorkshire –

- Due to negligence of the police, football pens were overcrowded during a game. A disaster in the
football stadium occurred resulting in the death of 96 people (+400 ppl injured) all of which was
broadcasted live.
- There were 16 petitioners who filed the claim
- Chief Constable admitted liability 4 the deaths and injuries but refused to accept liability for
psych harm
- Plaintiffs raised claims against the constable: One plaintiff was elsewhere in the stadium when
his two brothers were killed in the disaster. He failed to satisfy the first condition of the
control mechanism, that condition of ties of love and affection, as the courts refused to presume
that such ties were present on the mere factor of them being brothers and no evidence proved that
there were actually such ties, and thus received no compensation.
- Two plaintiffs lost their son in the disaster however failed to satisfy the second clause, that of
being at the accident or in the immediate aftermath, instead viewing it on television and were
thus refused compensation.
- One of the plaintiffs identified his brother-in-law at the mortuary at midnight following the
disaster and thus failed to satisfy the third condition as he only discovered the scene at midnight
and thus was not in the immediate aftermath of the tragedy.

o White v Chief Constable of South Yorkshire –

- The police officers who were present in the same disaster rose a claim of post-traumatic stress
disorder while engaging in the rescue work. They were not in the range of foreseeable physical
injury however claimed to be primary victims on the basis of being employees to the tort-feasor
and the nervous shock being in the course of employment. The plaintiffs were denied
compensation as they were not primary victims.
a) Public Policy?
b) Injustice?
c) Any available alt remedies?

0 Hicks v CCSY

- Sarah and Victoria Hicks were sisters aged 19 and 15 when they were crushed to death in the
Hillsborough football stadium disaster. Their parents brought a claim against the defendants
seeking damages in respect of the fear and terror that the sisters would have suffered prior to
death. The trial judge held that the claimants had failed to prove that either girl suffered before
death any injury for which damages fell to be awarded. This decision was affirmed by the Court
of Appeal. The parents appealed to the House of Lords- appeal dismissed
- “It is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for
which no damages can be awarded. Those trapped in the crush at Hillsborough who were
fortunate enough to escape without injury have no claim in respect of the distress they suffered in
 what must have been a truly terrifying experience. It follows that fear of impending death felt by
the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of
action which survives for the benefit of the victim's estate.”

o McLoughlin v O’Brian – (Must consider Aftermath)

- Examined scope wrt immediate aftermath

- Plaintiff’s husband and children were involved in an accident due to defendant negligence. One
child died while the husband and two children were severely injured and were taken to the
hospital. The plaintiff was informed of the same and arrived at the hospital.
- The sight of her family injured and the news of the death of her daughter gave her psychiatric
illness and she was allowed damage for nervous shock as she was a secondary victim as it
satisfied the control mechanism on all three accounts (immediate aftermath being the hospital).

o Bourhill vs Young –

- The claimant was a fisherman’s wife. As she alighted from the tramp cart, she saw a motorcyclist
go past. After a few minutes, she heard a loud sound and assumed that the motorcyclist got into
an accident. He had in fact died and his body was taken away.
- However, when she passed by, she saw the remnants of the accident in the form of blood and
had a nervous shock, and thus delivered a stillborn child. She then brought a claim against his
motorcyclist.
- The court did not entertain the claims, stating that she was not in a foreseeable state of nervous
shock. The motorcyclist was negligent, however that does not have the reasonable foresight of
injuring this woman, particularly that of only his blood.
- Furthermore, she was not in the area of shock, merely hearing the accident and not seeing it.
The court finally stated that people must have the necessary fortitude to withstand such types of
shocks, and very sensitive plaintiffs will not be compensated.

● Remedy isn’t given for just a simple nervous shock that may/may not result in something.
It’s given if psychiatric injury is manifested.

● There are 2 theories

a) Impact theory
Limited to spatial understanding of area- exclusively geographical. Not used nowadays
for interpretation bc it’s very narrowly constructed
b) Shock Theory
Applies if you’re present in a reasonable area of shock. Not ltd by geo constraints- can be
mental too. Predominantly used today. It’s a temporal time wise understanding.
Accident + Aftermath is included and considered for verdict

0 Hicks v CCSY
Facts: 19 y old Sarah and 15 y old Victoria Hicks were sisters who were crushed to death in the
Hillsborough football stadium disaster of 1989. The girls’ parents brought a claim seeking damages for
the fear and terror that the sisters would have suffered before death.

Q: Whether or not damages could be awarded for the fear that a victim may have experienced just
prior to a fatal injury and if this amounted to pain and suffering sufficient for a cause of action?

A: not possible to quantify fear of impending doom/death, there's no cause for action. Fear is not a
medically recognised condition and does not qualify for compensation for psychiatric harm.

0 Greatorex v Greatorex

- The defendant, John Greatorex (D), had been drinking with his friend H. With H’s permission D
proceeded to drive H’s car, with H himself as a passenger.
- D was responsible for a serious collision with an oncoming vehicle. H did not suffer any serious
injuries but D was left trapped inside the car, unconscious and with a severe head injury.
- The emergency services were called and soon arrived on the scene. Amongst them was the
claimant, Christopher Greatorex (C), a fire officer and the father of D.
- Having to attend to his son in such circumstances caused C to develop long-term post-traumatic
stress disorder, and as a result C brought an action against D in negligence.

Q: Whether and in what circumstances a person can be liable to family for self inflicted harm, that having
been witnessed by a fam mem had caused them to suffer psychiatric damage?

A: A primary victim could not be liable in negligence to a family member as a result of their own
self-inflicted injuries; no duty of care was owed in such circumstances, as to hold otherwise would place
an inexcusable fetter on personal autonomy.

- Even though acc to Alcock, the dad fulfilled criteria and was a sec victim, the claim was rejected
on policy grounds
- Moreover, to permit litigation for purely psychiatric damage in such cases might exacerbate the
underlying problem, for instance if the primary victim were themselves suffering from a
psychiatric disorder, and “would be potentially productive of acute family strife.”

OCCUPIER’S LIABILITY

- There is an implied warranty by the occupier that the premises are to be as safe as reasonable
care would allow.

Factors to take into consideration while determining liability

a) Simply warning of danger doesn’t absolve the occupier of liability unless the warning allowed the
visitor to be reasonably safe
b) Occupier isnt liable for faulty work of third party, provided the occupier acted reasonably in trusting
the contractor and taking enough steps to ensure the contractor was competent and the work was properly
done.
c) Contractors are to be treated as visitors if they’re permitted on the premises (eg- for unloading
materials)

Acc to OLL, 1984- Occupier has duty towards trespasser if they

a) are aware of danger on the property
b) have reasonable grounds to believe that a person may come into the vicinity of that danger
c) occupier may reasonably be expected to protect against that danger
If these 3 conditions are fulfilled ten VNFI defence doesn’t apply

o Wheat v E. Lacon & Co (1922) -

A company owned a pub. The manager and his wife occupied the first floor of the pub, the manager and
his wife were allowed to take residence. The claimant visited the premise through the rear end of the
building. The rear stairs did not have a complete handrail, and thus the claimant fell down a dimly-lit
staircase, fractured his skull and died as a result of his [Link] court held that there could be two
or more occupiers held liable.

● If the control is shared then there could be shared occupiers and thus both the company and the
manager were held liable.

Principle: the word occupier denotes 'a person who had a sufficient degree of control over premises to
put him under a duty of care towards those who came lawfully on to the premises', additionally there
may be more than one occupier

o British Railways Board v Herrington –

- Electrified railway line of the Railway Board ran between properties in which children played.
The fence had gone out needing repairs and it was possible to cross it, which the Railway staff
were aware of, even noticing children cross through it.
- A 6 year old boy tried crossing and got severe burns from the electrified fence suddenly coming
to life. The Railway Board was held liable though the boy was a trespasser.

Liability is not to ensure visitor’s safety but rather to take reasonable care. This extends to safety not
just from the state of the premises but also known dangers due to things done or omitted to be done on
them.

o Ferguson v Welsh -

- Sedgefield District Council, in pursuance of a development plan to build sheltered

accommodation, engaged the services of Mr Spence to demolish a building.
 - It was a term of the contract that the work was not to be sub-contracted out. In breach of this
term, Mr Spence engaged the services of the Welsh brothers to carry out the demolition who in
turn engaged the services of Mr Ferguson to assist.
- Mr Ferguson suffered serious injury resulting in permanent paralysis when a wall he was standing
on collapsed due to the unsafe practices operated by the Welsh brothers.
- He brought an action against the Council, Mr Spence and the Welsh brothers.
- The trial judge held that the Welsh Brothers were liable but that Mr Spence and the Council were
not liable. Mr Ferguson appealed however the appeal was dismissed.
- Mr Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr Spence
would have apparent or ostensible authority to invite him on to the land.
- However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not
the state of the premises. As the dangers were not known it was held that Mr Ferguson would
not be compensated.

o Municipal Corporation of Delhi v Subhagwanti

DIRECT RISK & INDIRECT RISK

=> DIRECT- In cases w direct danger/risk, the occupier must make arrangements to tackle it.
Eg- fan falls on you in a restaurant
=> LATENT- hidden + no knowledge of danger.
Rules are stringent now. As occupier, one should be able to tackle both latent and direct risk.

0 JK industries v Chief Inspector of factories and boilers

- Court held: When a comp owns/runs a factory then the comp has ult control. Therefore, would be
occupier
- Court said that ultimate= final/last
-So, one w ult power/control over affairs of a factory. Not just day to day control but overall resting power

● Under factories act 1948, an occupier has been defined as someone who has ultimate authority.
Name of the occupier must be disclosed 15 days prior to opening of factory
● Whether a person is an occupier or not depends on the level of control they can exercise

Visitors
a) Child Visitor
b) Common calling (ppl who come home to render services/deliveries- electrician, plumber,
delivery service)

TRESPASS TO LAND

● Unlawful interference to property- Invasion of priv prop

● Elements:
Entering land of P + Remaining there, even after being asked to leave
Trespasser ab initio- act affecting sole possession of plaintiff’s property- A person is said to have
committed trespass ab initio, when they have abused the authority granted by law to enter a property or
land.
Elements of Trespass ab Initio
1) Authority given by law
2) Subsequent act must be misfeasance

Trespass extends to above and below the ground as well, up to reasonable limits. If a person enters a
land under legal justification and then abuses the authority granted to him to enter the area by committing
a wrongful act there, he will be termed a trespasser ab initio to the property.

Defences:
o Right of way obstructed by plaintiff and trespass was necessary to avoid it
o License to enter, such as entry to a shop or a public house, however the defendant must prove that
express or reasonably implied permission was granted for such entrance to premises.
o Authority of law, such as that of police officers.

● Trespass to land means interference with possession of land without lawful justification.
Interference with possession is direct and through a tangible object. Non-direct interference is
nuisance. Throwing stones is trespass, allowing them to fall from a ruinous wall is nuisance.
● Going beyond the purpose for which a person has entered certain premises or crossing
boundaries at which the person has authority to go amounts to trespass.
A person does not become a trespasser by merely going beyond the area of invitation, he must go
to areas expressly forbidden.
● Trespass is against possession rather than ownership. The possessor can therefore bring a suit
against the owner for trespass, and can succeed on his own title’s strength rather than the
weakness of the title of the other party
● If trespass occurs then the possessor has right to use reasonable force to get the trespasser
vacated, however they cannot sue for trespass. Any loss or damages suffered during the trespass
would be compensated however.

0 Baxtor v Taylor
- Held that an owner of the land, who neither has possession nor any immediate right to possess it, cannot
bring an action for trespass
The plaintiff owned the freehold of a close, but had let it out to a tenant. The defendant had entered upon
the close with horses and cart, and, although asked to cease from doing so by the plaintiff, had continued
to do so, claiming a right of way. To the extent that there was any damages to the land it was the
impression of the horses and cart made on the soil.
The Court of Appeal considered that this was damage of a transient nature only, rather than damage to the
plaintiff's reversionary interest, and there being no injury to the plaintiff's reversionary interest, he could
not bring the claim in nuisance.

0 Six Carpenters Case

Q: Whether the non-payment by S made the entry into the tavern tortious and therefore trespass?
 - Six carpenters (S) were served with wine and bread at a tavern which they paid for. S requested
more wine and bread afterwards, of which they were served, by this time they refused to pay.
John Vaux (J) brought an action of trespass against Thomas Newman and the five other
carpenters.
- There was no trespass. When an entry, authority, or licence, is given to any one by the law, and he
abuses it, he shall be a trespasser ab initio, however it will not be trespass where the entry or
authority is given by the party and abused.

0 Smith v Stone
- Smith (S) brought an action of trespass against Stone (D) after D was carried onto S’s land by force, and
violence of others, and was not there voluntarily. D was carried onto the land of P by force and violence
of others; there was trespass by the people who carried D onto the land, and not by D.

- An involuntary trespass is not actionable. Only the trespass of the party which D onto the land was
actionable. The court compared the present circumstance to a hypothetical situation involving a person
driving cattle onto someone else’s land: “as he that drives my cattel into another mans land is the
trespassor against him, and not I who am owner of the cattell.”

Trespasser ab initio

0 Cinnamond v British airport authority

- Six drivers w their own cars- would often go to the heathrow airport to drop passengers
They had a lot of contacts in the hotels surrounding the airport to get customers for them.
- They would drop their customers off and hang around smewheere to get passengers rather than
stan in the queue. They thus get ahead of the licensed taxi drivers who are in the feeder parks
waiting to be hired. This way they poached customers
- Another horrid thing was that they’re overcharge customers- charge 20-40 euros for a trip to
London when the avg price charged was 8 euros
- Court observed that the car drivers have a right to entry bc they drop off customers. But the driver
has no right to hang about there for a return fare.
- By doing so, he is abusing his right gn by law and that makes him a trespasser ab initio

TRESPASS TO PERSON

Interference, however slight with a person’s elementary civil right to security of person, and
self-determination in relation to his own body, constitutes trespass to person. Trespass may be done
intentionally, deliberately or negligently. The fundamental principle plain and incontestable law is that
every person’s body is inviolate.

Three types
i) Battery
ii) Assault
iii) False Imprisonment
-intentional + foreseeable + direct

Assault (apprehension to phy harm) is an attempt to do hurt to another along with the apparent ability
and intention to do so. Actual contact is not necessary. The plaintiff must have the reason to believe that
the defendant has capacity to carry out the threat in near future

Battery (actual phy harm) is the intentional and direct application of physical force to another person.
It is the actual striking of another person, or touching him in a rude, insolent, angry or revengeful
manner.

Simply Throwing water at a person could be classified as assault, however if any drops of water touch the
person it could be regarded as battery- Battery Starts where assault ends

False imprisonment is a total restraint of the liberty of a person for however short a time without lawful
excuse. To constitute this two things must be established:
(1) Total restraint of liberty of a person – Detention may be either actual (physical) or constructive
(show of authority),
(2) Detention must be unlawful – Time period is immaterial but it must be lawful only. If there is any
means of escape that is reasonably intelligible to the person detained then the restraint cannot be termed
as false imprisonment. Lawful detention, such as detaining a person entering a certain premises with the
object of fulfilling certain conditions till said conditions are completed, is valid.

Elements of FI
1) Total restraint (actual or constructive)
2) restraint should be for said period of time (however short)
3) w/o lawful justification

~ IPC Section 339 (Wrongful restraint) and Section 304 (Wrongful confinement)

o Herring v Boyle – Schoolmaster tells mother that school boy would not be allowed to go till she paid
the dues owed to the school. The boy was unaware of such restrictions and it was thus held that there was
no false imprisonment.
o Bhim Singh v State of J&K

Q: Can a person be imprisoned if they don’t even know they’re being imprisoned?
Mearing was an 18 year old employee who had already obtained his pilot's license and was building his
own plane stuff- had been going missing from the factory and suspicion had fallen on young Mearing had
he been swiping things to use in his own aircraft building project. The factory hired private security
guards and those private guards together with some actual police obtained a search warrant and an arrest
warrant. They turned Mirren's living quarters upside down and found some potentially suspicious items.
Mearing however wasn't at home. The private guards kept up some surveillance and intercepted Mearing.
When he got home they took him up to the factory office with the intention of keeping him there until the
police arrived to arrest him. They told him he was to be interviewed as a witness and left him in a waiting
room unbeknownst to him two of the private guards remained outside. The jury later decided that they'd
been left there to ensure that Mirren could not leave. Mearing didn't know they were there he had no
idea that he was being forcibly, that he couldn't leave at any time. When he later found out about it he
sued on the basis that he had been falsely imprisoned.
Court said you can sue even if there’s no knowledge- you’re unconscious or asleep or inebriated (Direct
contrast to Herring v Boyle)

The standard defences to trespass to the person, namely

i) necessity
ii) consent
iii) self-defence
iv) defence of others
apply to battery.
A physician may touch a person without that person’s consent in order to render medical aid to him or
her in an emergency.
A person who has, either expressly or impliedly, consented to participation in a contact sport cannot claim
in battery against other participants for a contact permitted by the rules of that sport, or expected to occur
within the course of play. For example, a basketball player who commits a hard foul against an opposing
player does not thereby commit a battery, because fouls are a regular part of the course of the game, even
though they result in a penalty. However, a player who struck another player during a time-out would
be liable for battery, because there is no game-related reason for such a contact to occur.

Defences to assault similarly comprise of

a) self-defence or b) defence of a third party, or in certain activities like sport where it is implied.

BATTERY

0 Wainright v Home office:

The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the
person in relation to both claimants consisting of wilfully causing a person to do something to himself
which infringed his privacy. The defendant appealed against the finding of trespass and was successful in
the Court of Appeal. Uk didnt recognise right to bodily priv- didn’t have provision to implement right to
priv under tort law
0 Wilson v Pringle
As a schoolboy prank, the defendant pulled another 13-year old pupils bag, causing the claimant to fall
over and suffer hip injuries. The court held that liability depended on whether the pupil’s actions had been
‘hostile’ and not simply a schoolboy prank- said ‘hostility’ was a necessary element of battery.
Distinction btw normal social touching (whether or not the contact was acceptable within the conduct of
ordinary daily life) and hostile touching (the deliberate touching of another’s body, beyond the bounds of
acceptable everyday conduct in the absence of lawful excuse)
In most cases, hostility is assumed based on the fact that the claimant was touched without consent.
However, in some cases hostility will need to specifically be proven- eg: unexpected friendly gestures like
back slaps, hugs and hand shakes; ordinary jostling in crowded places (defence of implied consent is
taken); necessary surgery on person who hasn’t consented to it

ASSAULT
0 Bavisetti Venkata Surya Rao v Nandipati Mutthaya
In this case, the plaintiff, a well to do agriculturist, was in arrears of land revenue. The village munsief,
who had duty to collect amount went to the plaintiff’s residence for the collection of the amount. On
demand being made the plaintiff pleaded his inability to pay the amount that as the wife had locked the
house and gone out for a few days. The defendant insisted to have the payment the very day, that being
the last day of the year for collection of the revenue the plaintiff was told that on his failure to pay, his
movable property will be distained. Since the plaintiff’s house was locked and no other movables were
readily available, the defendant told him that the earnings which the plaintiff was wearing would be
distained. The village gold smith was called. On the arrival of the gold smith, one of the persons present
there paid off the amount due from the plaintiff by borrowing the same from another person. The
defendants than went away quietly. The plaintiff sued the village munsief stating that apart from other
wrongs the defendant had committed assault. It was held that since the defendant, after the arrival of the
Goldsmith, said nothing and did nothing and the threat of use of force by the goldsmith to the plaintiff
was too remote a possibility to have put the plaintiff in fear of immediate or instant violence, there was no
assault.

DEFAMATION

- Slander – Publication of defamatory words or statements in transient form that injure the
reputation of the person. Eg- Verbal
- Libel – Permanent defamation. Eg- films, songs, blogs, vlogs

Elements of Defamation:
1) Statement must be defamatory/false
Injures reputation of the plaintiff in the estimation of right thinking members of society which might
make such members shun or avoid that person. Exposes P to vitriol/hatred/contempt
2) Said statement must refer to the plaintiff
3) Statement must be published
Publishing involves making the defamatory matter known to some person other than the person
defamed. Communication to the plaintiff alone is not enough, there needs to be an injury to the reputation.
[Dictating to a typist however is considered as publication, as is a defamatory letter intended for the
plaintiff which can be easily read by another.]

● Innuendo: A statement that’s prima facie innocent bt has an underlying defamatory meaning
● Can you defame a whole class of persons? No, it must be directed to a single person. Action
against one group/class of ppl isn’t possible

- Those who repeat the matter are as liable as the original defamer, as every repetition is a fresh
publication giving rise to a fresh cause of action. However if the defendant did not know or
could not have known that what they were circulating was defamatory despite reasonable
diligence, then they would not be held liable. Further an editor cannot claim indemnity for
obtaining wrong information and then publishing it, because it is his prerogative to verify the
information before publishing it. (See Gurbachan Singh v Babu Ram)
o Yousoupoff v MGM Pictures – Rasputin was a movie. In the movie Princess Natasha was seduced by
Rasputin, leading to an illegal relationship between the two. The Princess Natasha was made to appear
like the actual Princess of Russia, Irina and the Prince of Russia, Felix Yousoupoff was similar to the
villain of the movie. Considering that their likeliness were used, they filed a case against MGM. The court
stated that the case amounted to libel.

o Gurbachan Singh v Babu Ram – Editor published wrong information believing it to be true. Held
liable.

0 Nemichand v Kemraj:
Defamatory content in pamphlet- printed and kept in godown- not yet distributed or published. Plaint
found it and sued. Court held Def to not be liable bc there is no essential element of publication. “Mere
printing of a defamatory statement is not actionable”

Defences:

1) Truth – Truth, regardless of intention behind publication, remains an absolute defence to defamation.
The statement must be substantially true with the correct interpretation being reasonably foreseeable by
right thinking members of society.

0 Nellika Achutan v Deshabimani Printing and Public Home

An army veteran killed wild elephant that approaches his village- keeps the tusks (valued at 15000 INR)
The defendants printed news against him- P accuses it to be stemming out of political vendetta and other
agendas against him- Def unable to show why they actually printed the news- According to P, there was
therefore no evil intent to commit a theft of the tusks- Defs took defence of truth- Court held for Press

2) Fair comment – Following conditions are required for a fair comment:

(a) Must be a comment, an expression of opinion and not assertion of fact
(b) Comment must be fair
(c) Matter commented upon must be in public interest.

3) Privilege – Right of free speech that outweighs the plaintiff’s right to reputation. In matters of absolute
privilege there is no action for defamation even if the statement made is false or maliciously made. This is
recognized in parliamentary proceedings, judicial proceedings and state communications. In
qualified privilege, the statement must be made with no malice and there must be an occasion which calls
for the statement to be published.
i) Absolute Priv (State Machinery)
ii) Qualified Priv (Media)- 2 fold test
a) must be w/o malice
b) must be in occasion for making statement- I have a duty to make the statement and listener has duty to
listen and understand (can me moral, social or legal duty)
c) statement made in public interest

0 Reynolds v Times newspaper Ltd

- Publication of defamatory political information not subject to general qualified privilege
- The plaintiff was a former Taoiseach (Prime Minister) of Ireland. He began proceedings against a British
newspaper publisher in relation to an article which alleged that he had dishonestly mislead parliamentary
and cabinet colleagues whilst in office. The defendants pleaded the defence of qualified privilege at
common law. The plaintiff was successful at trial.
- court said it was not inappropriate to distinguish political information from other matters of serious
public concern

- Nevertheless, where the information is in the political domain, the court should be slow to
conclude that publication is not in the public interest- Media as a watchdog of democracy

● In a suit for damages for defamation the plaint ought to allege the publication of defamatory
statement, set out the actual words used and also state that they were published or spoken to some
named individuals and specify time and place they were published. Only the person who is
defamed can raise a suit.

NUISANCE

Unlawful interference with a person’s use or enjoyment of the land or some right over or in connection
with it. Nuisance is consequential interference with land. There are two kinds of nuisance; public and
private.
- Indirect, not actionable per se
- Interference w/ enjoyment of property in possession of P. Can be in various ways incl
a) Noise
b) Smell/ Odour + Air pollution
c) Interference w/ Servitude
d) digging the foundation, blocking building
e) free branches/roots
f) Dust and Smoke

Essentials of Nuisance
1) Interference w/ Impact
Either to a private indiv or to the public at large

Public or common nuisance – Crime. Public nuisance comprises of acts that either affect the public at
large or some considerable portion of it, thus interfering with the rights which members of the
community might otherwise enjoy.
Obstructing a public road by digging a trench is public nuisance.

For a private right of action a person must:

(a) Show a particular injury to himself greater than that which is suffered by the rest of the public,
(b) Such injury must be direct and not a mere consequential injury,
(c) The injury must be of a substantial nature.

o Dr Ram Raj Singh v Babulal – Brick grinding machine built adjoining the premises of the plaintiff, a
medical practitioner. Brick machine generated dust which entered the consulting chamber of the plaintiff,
causing inconvenience to his patients and himself. It further coated the clothes red with dust. It was
held that special damages were to be provided to the doctor and a permanent injunction was issued
against the defendant for his brick grinding.

Private nuisance (Plaintiff must have possesory interest in land- owner/posessor)

– Conditions:
(a) Unreasonable interference,
(b) Interference with use of enjoyment of land- that’s substantial and unreasonable
(c) Damage.
Unreasonable interference is determined by the society and locality- threshold is more than average.
Sensitiveness of the plaintiff is not taken into account.

o Bradford Corporation v Pickles – Pickles owned land containing underground streams that fed Brad
Corp’s reservoir. He cut off water supply by sinking a shaft in it. Then, offered to sell his land to BC at an
exorbitant price. Court held act was not lawful- sinking shaft was done on pickle’s OWN land- it was a
lawful use of his own land. If an act is lawful, it does not become unlawful merely because the act was
done with evil intent.

o Right to commit nuisance – If a person practices an activity for 20 or more years, he acquires a legal
right to carry on said act in the future too.

o Statutory Authority – An act done under the authority of a statute is a complete defence. If nuisance
occurs due to such acts, then there exists no liability.

Remedies:

o Abatement – Removal of nuisance. Must be

(a) peaceable, (b) without danger to life or limb, (c) removed after providing notice if in the premises of
another.

o Damages – Measure of damages is valued as the diminution in the value of the property due to the
negligence. The plaintiff must prove special damage.

o Injunction – The injury present or impending must be so grave as to warrant an injunction and cannot
be adequately compensated in damages alone.

Seriousness of Nuisance- Harm depends on

i) Duration of harm
ii) Extent of Harm
iii) Nature of harm
iv) Social value of the use interfered with
STRICT LIABILITY

Activities so hazardous that they constitute constant danger to person and property of others, however
may be tolerated on the condition that they pay their way regardless of any fault.

o Rylands v Fletcher – Defendants had a mill, constructed a reservoir by employing engineers to do it.
When the reservoir was filled the water would flow down the plaintiff’s mine, causing damage. Engineers
were independent contractors and they were negligent for not properly sealing disused mine shafts that
allowed the water to flow out. The defendants were held liable under the principle of strict liability. Thus
the Rule of Rylands v Fletcher was created with its two elements:
a) non-natural use of land
b) escape from his land something which causes damage (+ is prima facie answerable for all damage
which is the natural consequence of it’s escape)

-
- 0 Transco v Stockport MBC
The def was responsible for supplying water to a block of flats. An undetected leak devp &
eventually fixed. In the time it hadn’t been detected- the water got settled in a place and the
stagnation caused pressure on the pipes and lead to their collapse. This was where the gas pipe of
the Plaint was so it meant that the gas pipe was no longer supported. This caused a grave risk
which necessitated immediate remedial work, which was costly. The Claimant argued that the
Defendant council was liable under strict liability under Rylands v Fletcher. Court held not liable
as it’s a natural use of land. Supplying water was neither an unnatural nor specifically
dangerous endeavour.

- 0 Read v Lyons
Read (C) had been drafted into the Ministry of Supply and directed to inspect the manufacture of
munitions at a factory operated by J Lyons & Company Ltd (D) During the inspection, C was
injured by the explosion of a shell. C sued D under the rule in Rylands v Fletcher (no allegation
of negligence was made) for her personal injury. D was not liable as there was no non-natural use
of land, no escape of a dangerous thing involved and personal injury is not actionable under
rylands.

Defences

1) Act of third party/stranger (human hand involved)– If the act was caused by a third party over
which the defendant had no control over, then the defendant would not be held liable.

2) Plaintiff the wrongdoer – If the plaintiff suffers damages for his own intrusion into the defendant’s
property then he has no right to complain for the damage caused.

3) Act of God (no human hand involved)– If the escape was caused by unforeseen and supernatural
forces without any human intervention then the defence of act of God can be pleaded.

0 Nichols v Marsland – The defendant created artificial lakes on his land by damming up a natural
stream. That year there was extraordinary rainfall and thus the embankments constructed for the artificial
lakes gave way and the water rushed out. It was held that the defendants were not liable as it was an act of
God.

4) Consent of the plaintiff – VNFI

0 Carstair v Taylor – Plaintiff hired ground floor of a building from the defendant. Upper floor was
occupied by the defendant himself. Water stored on the upper floor leaked without any negligence on the
part of the defendant and injured the plaintiff’s goods on the ground floor. As the water was stored for
the use of both the plaintiff and defendant it was held that the defendant was not to be held liable

5) Statutory Authority (govt’s duty and given right)– Act done under the authority of a statute is a
defence. Statutory authority however cannot be used as a defence to negligence.

0 Green v Chelsea Waterworks Co – Defendant company had a statutory duty to maintain continuous
supply of water. A main burst without any negligence on the company’s part and as a consequence the
plaintiff’s premises was flooded. It was held that the company was not liable as it was performing a
statutory duty.

ABSOLUTE LIABILITY

When an enterprise is engaged in a hazardous or inherently dangerous activity for its profit and harm
results to anyone on account of an accident in the operation of such activities, then such enterprise will
be held absolutely liable to compensate all those who were affected by the accident and such liability is
not subject to any exemptions or defences. The enterprise alone must have the resources to discover and
guard against hazards or dangers and to provide warning against potential hazards.

=> To make good the loss by polluter pays and precautionary principle supplemented by concepts like
deep pocket theory
=> Duty is absolute & non delegable

o MC Mehta v Union of India – Claims arose from the leakage of oleum gas from one of the units of
Shriram foods due to structure of the tanks. This happened in Delhi, in a densely populated, residential
area. As a consequence of this leakage, it was alleged that people were affected, leading to death. This
occurred in the wake of the Bhopal tragedy. The SC evolved the rule of absolute liability (it’s an
indigenous rule) as Rylands wasn’t enough to fulfil modern needs of an industrial society and thus held
the company completely liable.

0 UCC v UOI-
A highly toxic gas, methyl isocyanate, escaped the premises of Union Carbide Limited (UCIL) harming a
massive population along with the flora and fauna. Methyl iso-cynate escaped the parameters of the
factory killing 2600 people instantly and leaving thousands of them injured. Later reports disclosed the
count of people who died reached 20,000 and around 60,000 people suffered irrecoverable physical
damage. The zone wherein the plant was situated was for light industrial and commercial utility, not for
dangerous industry. The plant was initially approved only to formulate pesticides in relatively small
quantities. UCIL- 49% govt share and 51% owned by UCC (US company) operated in Bhopal, MP. The
leak happened in the night. The Ind govt appraoched the US courts but they declined the case denying
jurisdiction. SC ordered for exemplary damages- 470M$ for the consolidated suit on behalf of all victims
by the UOI (SC applied parens patriae)

o Klaus Mittelbachert v East India Hotels Ltd. – A German pilot when staying at the Oberoi in Delhi
was badly injured when he dived into a hotel swimming pool due to defective design and insufficient
water. It was held that a five-star hotel owes a high duty of care to its guests and thus was held to pay
exemplary damages. There was a latent defect in structure and service.
[One who purchases a glass of water from a trolley in the street for 10 or 25 paise is entitled to safe
drinking water which should not ordinarily infect him. But if person purchases a mineral water bottle for
Rs. 10/ or 15.00 then he can justifiably demand a higher degree of purity. The manufacturer of water
bottle cannot be heard to say so long as he has made it equivalent to the trolley man’s water he has done
his duty and he needs to do nothing more. Such a proposition would be untenable both in law and equity.]
The quality and safety of the services offered increases with the quantum of the price paid for being
guest at the hotel. Higher the charges, higher the degree to take care.

VICARIOUS LIABILITY

Master and Servant –

i) Qui facit per alium facit per se (he who acts thru another is deemed in law as doing it himself)

ii) Respondeat superior hold that the master is liable as well as the servant, putting the master in the same
position as if he did it. Supervisor is responsible! Not just the one who obeys, but the one who commands
is also liable- Their liability is joint and several as they are considered to be joint tort-feasors.
This further arises from the deep pocket theory, which states that masters are more likely to be able to
meet the claims against them. For vicarious liability to hold it must first be established that the employee
was a servant and not an independent contractor, determined through the test of control.
The four conditions in the test of determining servanthood are:
(a) Master’s power of selection of servant,
(b) payment of wages,
(c) Master’s right to control the method of doing work,
(d) Master’s right to suspend or dismiss.

Further personal investment of the other parties into the servant and the intention to form a
master-servant relationship all allow vicarious liability to fall upon the masters.
o Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd. – Appellants lent crane
and driver to respondent under a contract stating that the driver would be the servant of the
respondent. The crane driver injured someone in his negligence however the original owners, the
appellants, were held liable as the transfer to servant was incomplete and therefore invalid. It was held
that for certain tasks, such as a man driving a mechanical device, the general employer still holds the
method of performance and thus remains the master who will be held vicariously liable.

o State Bank of India v Shyama Devi – Plaintiff’s husband gave some amount as cheques to his friend
to deposit in the plaintiff’s account in the bank in which the friend worked in. No receipts were received.
It was held that the defendant was acting outside the course of employment and instead in his private
capacity and thus the bank could not be held vicariously liable.

Partners – Similar to principal and agent. All partners of a business are liable to the same extent for the
actions done by one partner in the ordinary course of business.

Course of employment – A broad view is taken when determining what falls under the scope of
employment. The general method is to see whether the wrongful act committed by the servant has
deviated so much so from the normal method of doing the authorised act that the wrongful act cannot be
described as merely a wrongful or unauthorised method of doing the authorised act. Under the close
connection test however, as shown in Mattis v Pollock, the employer would be held liable due to the
close connection of the wrongful act of the employee to his employment and duties.

o Lister v Hesley Hall Ltd. - A boarding house was opened in 1979 with the principal students to live
there having behavioral and emotional difficulties. They lived under the care of a warden, who was in
charge of maintaining discipline and the running of the house. The warden lived at the house also, with
his disabled wife. His duties were ensuring order, in making sure the children went to bed, went to school,
engaged in evening activities, and supervising other staff. It had been alleged by some of the boys that the
warden had sexually abused them, including gifting them unwarranted surprises, and taking trips alone
with them. A criminal investigation took place some ten years later, resulting in the warden being
sentenced to seven years imprisonment. Following this, the victims brought an action for personal injury
against the employers, alleging they were vicariously liable. The suit held and the defendants were
found vicariously liable. A new test of vicarious liability came about;
(a) in considering the scope of the employment, a broad approach should be adopted,
(b) while consideration of the time and place at which the acts occurred will always be relevant, they may
not be conclusive,
(c) while the employment enables the employee to be present at a particular time and place, the
opportunity of being present at particular premises whereby the employee has been able to perform the act
in question does not mean that the act is necessarily within the scope of the employment

There are prohibitions that limit the i) sphere of employment and prohibitions that only deal with the ii)
conduct within the sphere of employment. A transgression of a prohibition of the latter class leaves the
sphere of employment where it was and consequently will not prevent recovery of compensation. A
transgression of the former class carries with it the result that the man has gone outside the sphere.
If the independent contractor has breached a non-delegable duty the employer will be held vicariously
liable. If it is a breach of delegable duty, the employer will not be liable. Dangerous and hazardous
natured jobs will make the employer be held liable. This means that when one owes a non-delegable duty
towards another, he has a duty not only to take reasonable care himself, but ensure that others take
reasonable care. Thus a defendant who owes a non-delegable duty will be liable for the wrongdoing of
others even if they are independent contractors.

STATE LIABILITY

Peacock CJ – There is a clear distinction between acts done in exercise of what are termed as sovereign
powers and acts done in the conduct of undertakings which might be carried on by private individuals
without having such powers delegated to them.

Sovereign powers are those powers which cannot be lawfully exercised except by a sovereign or
private individual delegated by a sovereign to exercise them. Upon such powers no action will lie. Ex:
- Police power in keeping property or detaining individuals, maintenance of military road, transportation
of military food, military drivers and conveyance for sovereign purposes.

State is exempted from liability to pay damages for tortious acts of the servant, where the government
servant is carrying out or purporting to carry out duties imposed by law.

Sovereign immunity is subject to fundamental rights.

o P & O Company v Secretary of State for India – (Calcutta SC judgement, 1868-69)

Plaintiff’s servant was travelling in a horse carriage and was passing by government property. Due to
negligence of the defendant’s servants, a heavy piece of iron fell (they were repairing steamer) and
frightened the horse, causing it to injure itself. Plaintiff filed a suit against the Secretary of State for India,
and the courts held that the Government of India would be held liable as the job undertaken was a
non-sovereign work.

o State of Rajasthan v Vidyawati –

Plaintiff’s husband died after being knocked down by a Government jeep car which was driven rashly and
negligently by a Government servant. State was held liable, and the High Court felt no reason to treat the
state any differently from an ordinary employer. The Supreme Court in the appeal held the decision,
stating that the State cannot be immune from tortious acts of its employees.

To what extent was state liable? Liable as long as it supplies cars and keeps drivers. This can be perfomed
by priv company too. Not a sovereign fn.

o Kasturi Lal v State of UP. (1965) [Not overruled bc search and seizure can be done only by the state-
sovereign fn]
Ralia Ram, one of the partners in a jewellery firm went to Meerut to sell gold and silver. He was arrested
on suspicion of possessing stolen property and his goods were kept in police custody. The Head Constable
misappropriated the gold and fled. The plaintiff held the state of UP liable, however it was held they were
not liable as
(a) the police officials were acting in discharge of their statutory powers and
(b) the power of the police official in keeping the property was a sovereign power, contradicting the
Vidyawati case.

o N Nagendra Rao &Co v State of AP –

Appellant carried a business in fertilisers and foodgrains. Huge stocks were seized from the appellant’s
premises. Only nominal amounts of the stock was released after, and furthermore was spoilt in
quality and quantity. The appellant therefore sued the State. The SC held that the State was liable and
further held that the doctrine of sovereign immunity was no longer relevant in the current context of
society.

CLASS ACTION AND MASS TORT

Mass Action- Each individual has an indiv claim arising from distinct damage= each indiv gets his own,
separate trial
Mostly happens with disasters

Class Action- Many plaints are not considered indiv, there is one consolidated suit- not considered as
separate indivs but as a class.
Mostly happen with Pharma products

CONSTITUTIONAL TORTS

Constitutional torts are legal actions to pursue damages for violations of constitutional rights. Examples
include
- suing a police officer for use of excessive force
- suing a school administrator for wrongfully expelling a student
- suing a prison warden for unconstitutional conditions of confinement.
[wrongful/excessive action basically]
Awarding damages to individuals who are harmed by a federal or state official’s violation of the
constitution compensates for some of the individual’s past injury and deters future rights
deprivations.
Claim in public law for compensation for unconstitutional deprivation of fundamental rights is a claim
based on strict liability.

● Involves violation of FR (eg- custodial deaths, police atrocities, encounter killings etc)
● Distortion btw sov and non sov fns
● CPC not applied as procedure
 ● 0 Nilabati Behera Vs. State of Orissa (issue of legality of compensation)
- Court held that under art 32 and 226 court can award comp in the exercise of contitutional
power

o Ramjan v State of Rajasthan – Four women were injured by someone throwing acid on them. Held to
be deprivation of right to live with dignity, as the acid caused permanent scars and continuous mental
torture.

0 Challa Ramakrishna Reddy v State of AP

Father and son were in detention in police station. They got multiple death threats but police failed to take
any action. The following night, a bomb was hauled onto the police station. The father died. The state was
sued and held liable as there were very few police on duty that night- failed to take care of the ppl in
detention

DEFENCES

Statutory Authority – When an act is done under the authority of an act, it is a complete defence and the
injured party has no remedy except for claiming such compensation as may have been provided by the
statute. Immunity is provided not just for the immediate, obvious harm but also for any incidental injuries.
Authority of the state may be absolute or conditional. Absolute includes creating a railway line and thus
being exempt from any claims of nuisance or incidental harms due to excess sounds. When the authority
is conditional, it is permitted only if no harm is caused thereby. Creation of a smallpox hospital is one
such example of conditional authority.

o Metropolitan Asylum District v Hill - There was an allegation that managers of a hospital had been
negligent in and about the construction and maintenance of a hospital for small-pox patients in
Hampstead. The plaintiffs offered this evidence to show that in two recent small-pox epidemics there was
more disease in the neighbourhood of those hospitals than in other similar localities which had no small-
pox hospital. The hospital managers were held liable, with the court holding that the test should be that
the evidence was capable of establishing a reasonable presumption or inference as to the matter in dispute
and that it was reasonably conclusive.

Inevitable Accident – Unexpected injury which could not have been avoided despite of reasonable care on
the part of the defendant.

o Stanley v Powell – Defendant fired at a bird, missed and hit a tree, bullet rebounded and hit plaintiff.
Defendant held not liable under inevitable accident defence.

Act of God – Kind of inevitable accident, done by supernatural events.

o Nichols v Marsland
Necessity – Act causing damage if done under necessity to prevent an even greater evil is not actionable
though harm might be caused intentionally.

Mistake – Generally no defence, whether in fact or law, however in certain situations if the defendant acts
under an honest and mistaken belief then he may not be held liable.

o Consolidated Co. v Curtis – A gave goods to auctioneer who honestly believed that the A was the
owner of the goods when in fact A stole them from B. Auctioneer was sued for conversion however was
not held liable for acting in good faith with no evil intent.

Private defence – Use of reasonable force to protect person and property. Force must be used to repel
imminent invasion and should only be as much as is absolutely necessary. Excess defence cannot be
justified.

Plaintiff the wrongdoer – Mere fact that plaintiff is a wrongdoer does not disentitle him from recovering
loss.

o Bird v Holbrook – Trespasser is entitled to claim compensation for injury caused by spring guns set by
the defendant in the garden without notice.

Volenti non fit injuria – If plaintiff suffers harm with his own consent then the defendant will not be
liable. Mere knowledge of the risk is not enough (scienti non fit injuria), there must be consent to such
risks to act as a defence.

o Dann v Hamilton – A lady, knowing that the driver of a car was drunk chose to travel in it instead of
by bus. Shew as injured by an accident caused by the drunken driving. There was held to be no consent on
her part to suffer harm and thus she was entitled compensation.

Rescue – Does not apply, cannot take the defence of volenti non fit injuria.

o Haynes v Haywood Contributory negligence – Both plaintiff and defendant are negligent. Damages
will be reduced however the defendant will not be freed from liability.

o Jones v Boyce – Passenger in a horse driven carriage apprehended that the carriage might overturn and
in order to protect himself jumped out of the carriage. The court held that the claimant acted in the
manner due to the actions of the horse driver and thus the driver was held liable, no contributory
negligence.

DAMAGES

Types:
o Nominal – infringement of legal rights but no harm, nominal damages awarded in recognition of his
right.

o Contemptuous – Amount is trifling because the court forms a low opinion of the plaintiff’s claim and
feels that the plaintiff does not deserve a large compensation though he may have suffered a great loss.
For example, the reason for the defendant’s battery was hurtful remarks by the plaintiff.

o Compensatory, aggravated and exemplary – Compensatory is equivalent to the loss suffered.

Aggravated is when there is harmful motive and insult caused to the feelings of the plaintiff, causing
greater damages. Exemplary is when excess compensation is given for deterrent purposes.

o Prospective – Compensation for damage that as likely the result of the defendant’s harmful act but has
not resulted at the time of the decision of the case. For example, a crippled person would get
compensation not just for the loss suffered till the case but also for future likely damages.

Measure of damages – compensation may be given under the following:

o Personal pain and suffering and loss of enjoyment of life, including mental agony

o Actual pecuniary loss resulting in any expenses reasonably incurred by the plaintiff

o Probable future loss of income by reason of incapacity or diminished capacity for

work.

Injunctions – order by the court directing the doing of some act or restraining the commission or
continuance of some act.

o Temporary and perpetual injunctions – Temporary is provisional and thus once the conditions are
satisfied will be removed. Perpetual is a final order issued after full consideration of the case.

o Prohibitory and mandatory – prohibitory (negative) prevents an action, mandatory (positive) requires an
action to be done.

Self-help - Individuals’ implementation of their rights without resorting to legal writ or consultation of
higher authority, as where a financial institution repossesses a car on which they hold both the title and a
defaulted note. Individuals resort to self-help when they retrieve property found under the unauthorized
control of another person, or simply abate nuisances, as by using sandbags and ditches to protect land
from being flooded. Self-help will be allowed as long as no law is broken, and no breach of the peace
occurs.