Chapter 3: Law of Tort

 What is mean by TORT?

. A tort is type of civil wrong
. It is breach of legal duty
. Liability will only exist when law recognizes duty exist
EX. Car accident case, Food Poison cases from food manufacturing
companies

 Difference between contracts and torts

. It is not need of contractual relationship in matter of tort even if parties
are not meet before
. But if there is tort with contractual relationship then damages
claimable may be matter of choice (most appropriate) for claimant
. There are 2 options available;
1) Under a valid contract, the amount of damages awarded in
intended to put the claimant in the position he would have been in
had the contract been properly performed

2) In tort, the amount of damages awarded is intended to put the

claimant in the position he would have Been in had tortious act
never taken place

(Direct lines taken from book)

Note: Limitation period

. Limitation period for contracts are 6 years and specialty contracts
it is being starched at 12 years
. Limitation period for tort is generally 6 years, but 3 years for
personal injury suffered

The main elements of a torts

. In order to be a successful tort, following action must take into
consideration
 1) The act or omission must be by the defendant
2) The act or omission have directly caused damages or losses to
claimant
3) The court must be able to establish a legal liability as a result of
damages
4) A claim will be successful in the matter of tort only if it is not too
remote

 Negligence
. Negligence is breach of legal duty for to take care which will result in
damages for another person
. Negligence will only be successful if;
1) Duty of care owed to claimant by the defendant
2) There is breach for duty of care by defendant
3) As a result from breach of duty of care by the defendant, claimant
suffered losses

1) Duty of care
. Duty of care means to take appropriate responsibility while doing
something and which will not harm anyone
. Some important terminologies for duty of care;
a) Duty of care must exists even if there is no contractual
relationship between parties
Ex.
. For soft-drink companies like Pepsi and coco-cola, there is duty
of care exists while producing bottles or cans of drink
. They must take care that no harmful material or substance like
piece of glass will found in bottles or cans of drink by their
consumers or any others
. And if they will not able to take care of this matters, they will be
breached by consumers any others
b) Duty of care is also applicable for Nervous Shock
Ex.
. There was an accident of truck as a result of break-failure of
truck and driver of that truck was also drunk
. Mrs. Emi is pregnant women was there and saw blood at road
. After saw a blood on a road, she was went to mental trauma and
as a result of this she lost her baby
. After this was happened, she claims damages for her losses
. But court has decided that she cannot claim damages as she was
not seen the accident when it was happened
. She was present at location of accident after it happened that’s
why……….

c) Economic or financial losses are not claimable

. Economic or financial losses are not claimable if
They are not connected with personal injury to a person or
damages to a property
. Economical or financial losses are recoverable if they are well
connected with personal injury and damages to a property
Ex.
. Thomas steel Ltd. Contracted with Ruth Electricity Co. for
supplying electricity to Thomas steel Ltd. Which is used for
melting a steel for making big barrels
. But at one day, Ruth electricity Co. was not able to supply
electricity to Thomas Steel Ltd. Due to serious damage to
electricity pools
. As result of this, Thomas Steel Ltd. Could not able melt steel s
per need for making barrels and suffered loss from it also from
loses from buyers
. After this Thomas steel ltd. Sued Ruth electricity Co. for this and
claiming damages for loses form melting steel and also losses
from buyers
. But Thomas steel ltd. Can only claim loses from melting of steel
not for loses from buyers as it was PURE ECONOMICAL LOSS
 Note: There are some limits for duty of care
1) Was the damages reasonably foreseeable by the defendant
at the time of act or omission
2) Is there was principle of neighborhood or proximity between
parties
3) Should law imposes duty of cares between parties ( should it
has fair or reasonable to do so )
4) Is there matter of public policy which exist or requires that no
duty of care should exist

 Breach of duty of care

In order for claim of breach for duty of care, claimant must not only prove
that duty of care exists, but also prove that duty of care is breached by
the defendant

1) Claimant must prove that defendant was in breach of duty of care

2) Claimant must shows that defendant was not followed proper

standard of care

Some Important terminologies for standard of care:

1) Probability of injury of claimant

. The degree of risk of injury has to be balanced with risk of care
. It simply means that, more is chances of injury much more care
should be taken
Ex.
. Mr. A collects some poisonous fruits from trees which is
controlled by Showa Electricity Board
. And by after eating those fruits, Mr. A was died and window of
Mr. A claims damages from Showa Electricity Board
. Notice board which was put beside tress is no enough for
provide information that fruits are poisonous and unfortunately
Mr. A was not read it
 . That’s why Showa Electricity Board breached the duty of care by
not providing enough information about poisonous fruits at tree
. The degree of care is much lesser then risk of injury

2) Particular skill
. The degree of duty of care should strictly associate with
particular skill required
Ex.
. A doctor prescribed medicines of T.B instated of Brain Cancer
mistakenly
. And as patient was died due to wrongly prescribed medicines by
a doctor
. Representative deceased patient claims damages from doctor
. In this case, doctor has breached duty of care relates to
particular skill required by prescribing wrongly medicines for
wrong cause of care

3) Lack of skill
. Lack of skill or training of defendant is not relevant
Ex.
Means the standard of skill expect from qualified accountant is
same expect from trainee accountant

4) Cost and practicability

. The cost for taken reasonable measure for preventing any risk of
injury will not result in breach of duty of care
Ex.
. Taylor Ltd. Owns a factory of making wooden toys
. They also owns many wood cutting machineries which are much
sharper
. And also take proper maintenance of these machineries on time
to time
. But once a day, two employees cut their hand while working on
due to carelessness and machine which was properly maintained
by Taylor Ltd.
 . In such case, there is proper cost of care taken by Taylor Ltd. And
has no liability for damages claimed by that 2 employees who cut
hand by their own carelessness

 Causality(loss caused by breach)

. A claimant must prove that losses or damages which he suffered, was as
direct result of breach by the defendant
. It sometimes refer as ‘But-For Test’
. It means that, if losses or damages suffered by a claimant will not
connected with action of defendant then there is not liability for the
defendant
. Thus, claimant should prove a strong link between losses / damages
which he caused with defendant breach by considering following points;
1) If losses or damages suffered by claimant as result of something or
someone then it will not be liability of defendant
2) If losses or damages suffered by claimant as regardless of defendant’s
action then it will not be liability of defendant ( losses or damages will
ultimately bear by claimant whether defendant breach any action or
not)
3) If something happens after breach of defendant which contributes to
damage then in this case liability of defendant will ceases(stopped) at
that time
4) Following losses are only recoverable in case of tort;
a) Loss as result of breach by defendant(personal injury)
b) Damages to property of claimant as result of breach by defendant
c) Financial loss only if it is well connected with loss or damages
happened with claimant
d) Pure financial losses are very rare for to prove

Note.
 Law does prevent recovery from pure financial losses even if
claimant proves that loss or damages suffered by him as a direct
result of breach of legal duty by the defendant

5) Vicarious Liability
. It occurs when a person is held responsible for negligence of another
person
Ex.
. If I buy an iPhone from nearest phone shop with the guarantee of 2
years from Apple Inc.
. But it showing problems after just 6 months
. In such case, I cannot make demand for remedy from local phone shop
. In this case, I will make demand for remedy only from Apple Inc.

 Professional advice and negligent misstatement

. So there is no difference between liability arises from negligent act
And negligent statements
. A person suffers damages from incorrect statements by another, will be a
breach relating with negligent statement
. And as consequence of this, law strictly impose duty of care on such
negligent misstatement and negligent act
Ex.
. Mr. A wants to buy some pairs of shoes which are cheaper and affordable
. Mr. B who is close friend of Mr. A help him for to buy shoes by suggesting
shoes of ABC Shoe Ltd. Which is cheaper and affordable than any other
shoe company
. As suggestion of Mr. B, Mr. A purchase shoes from ABC Shoe Ltd. But they
charge much more than he expected and suffer loss of $1000
. In result of this, he sued his friend Mr. B for providing misstatement

Conclusion from above example;

 . A liability arise from negligent misstatement results in
economic/financial losses in circumstances where special relationship
between both parties is exists

Note: What is special relationship?

. Special relationship exists where one person gives professional advice to
another known person, on that statement known person relay for known
purpose
. For an action for negligent misstatement to be succeed, there must be
special relationship exists between both parties
. A liability will only arise when the defendant is in the business of giving
professional advice (Not informal or occasionally purpose)

 If a advice or financial statement prepared for specific purpose then

duty of care must be owed by person who relaying upon them for that
specific purpose

 Accountants which are hired by companies carries duty of care only for
that particular company who hires them for audit not for those peoples
who bought shares in that particular company like shareholders

 Remedies and defenses available in negligence

. The only remedy available in case of negligence is ‘Damages’
. And these damages should be ‘Reasonably foreseeable’
. As per general rule, the claimant must prove that the defendant was in
breach of negligence
. But sometimes the defendant has to prove himself innocent against
breach of duty of care (negligence)
. And this situation will occurs if;
1) Harm would not have normally happened if proper care were taken
2) There was no further explanation for what was occurred known as ‘res
ipsa loquitor’
3) The defendant was in control of situation and victim(claimant) was not
  Remoteness of damages
. If the type of damages is ‘reasonably foreseeable’, then only the
defendant will liable for it
Ex.
. Trish Oiling Agency has 3 oil transport vehicles and fully loaded
. Mr. A owns 100 sq. Feet of transport parking area near highway
. One day at morning all 3 vehicles were parked at parking area of Mr. A
and paid for it
. But there was leakage in one of them vehicle and oil was fully leaked at
ground surface
. And after sometime, there was big flame of fire nears at all 3 trucks
due oil leakage and immediately after all 3 vehicles was boomed
. And because of this incident happened, Mr. A suffers huge losses
. Mr. A make claim from Trish Oiling Agency for renovation work of
burned parking area and loss of profit from it
. In the view of court, Trish Oiling agency has breached duty of care
owed to Mr. A while parking their vehicles without proper care but
there are not liable for ‘Profit suffers from incident’ and Only liable for
‘Renovation work of burned parking area’ because it is reasonably
foreseeable

 Defenses against claim in negligence

1) Contributory negligence
2) Volenti non fit injuria
3) Novus actus intervenies
4) Exclusion clauses
5) Act of god

1) Contributory Negligence
 . It is a situation occurs when, the claimant is partly responsible for his own
injury
. In such cases, the court will reduce liability of the defendant which is
based on the degree of injury suffered by the claimant himself
. On the other hand, the defendant has to prove that claimant did
something which caused him injury
. It is only partial defense for the defendant, and defendant still bears
reaming part of liability

2) Volenti non fit injuria

. In this situation, the claimant consent that he/she fully responsible for any
injury or damages will happen with him/her, to the defendant
. And in this case, the defendant will free from any liability occurs in future
. This CONSENT gives complete shield of defense for the defendant against
liability

3) Exclusion clause
. Exclusion clause limits liability of the defendant in case breach of
negligence
. It is falls under provision of Consumers Right Act, 2015

4) Act of god
. In this circumstances, there will be no liability for the defendant
. Because act which was happened, was beyond the limits of humans like
natural calamites
. Which completely protects the defendant from liability

 The tort of passing off

. This tort protects business from goodwill, reputation and profits
. The tort of passing off arises if;
1) One business uses the name of another business
2) Misleads person into believing that they are into same business
3) Actual loss to business or will do so
 . If passing off successfully proved then court will restrain the
defendant’s business operation under the business name of innocent
party
. And will ordered compensation for claimant who suffered losses

Note: If a company feels that any company uses their business name in
market for doing their business activities then innocent or Claimant
Company should approach at COMPANY NAMES ADJUDICATOR UNDER
CA 06

4) Novus actus intervenies

. It is a situation arise when liability of the defendant will completely
vanished for some act’s
a) Act of the claimant
b) Act of the third party
c) Natural events

a) Act of the claimant

. Due to some act of the claimant, liability of the defendant will
ceased
Ex.
. Due to not proper maintenance of cutting machinery, Mr. A cuts
his hand (partly or half cut) and his employer takes responsibility
for it and accept negligence
. But after incident was happened, Mr. A continuous his work on
machinery with half cut hand and completely cuts his hand and
then lost his right hand
. In such case, employer will only liable for 1st incident and 2nd
damage was completely caused by Mr. A by his own (not claim
damages)

b) Act of third party

. Third party will be held responsible for partly damages
Ex.
 . Mr. B buys T.V set from Yahoo Ltd. But some yahoo ltd. supplied
a faulty piece of TV to Mr. B
. Mr. B went at TV repair shop of Mr. A, Mr. a completely
damaged TV
. In such case, Mr. B can only claim damages for 1st incident from
Yahoo Ltd. And damages from 2nd incident from. A

c) Natural events
. If damages or losses suffered by the claimant partly from natural
events then liability of the defendant for such events is not held
true
. But the defendant will held responsible for his own part of
damages or losses to the claimant