MODULE- II
GENERAL PRINCIPLES OF LIABILITY
IN TORT
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Module- II
General Principles of Liability in Tort
( Sessions- 05)
I.
Constituents of Tort Wrongful Act/ Omission,
Legal Damage and Legal Remedy
II. Essential Conditions of Liability- Injuria Sine
Damno- Damno Sine Injuria, Malice and Motive
III. Schools- Law of Tort or Law of Torts
IV. Capacity who can sue and who can be sued?
V. Remedies and Extinction of Liability in Tort
Legal Text:
Indian Succession Act, 1925
Motor Vehicle Accident Act, 1988
Indian Majority Act, 1999
Specific Relief Act, 1963
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Cases on Module II
1. Municipal Corporation of Delhi vs. Subhagwanti,
AIR 1966 SC 1750
2. Bhim Singh vs. State of J&K, AIR 1968 SC 494
3. Ashby v. White, 1703
4. Constantine vs. Imperial Hotel Ltd., (1944) KB 693
5. Gloucester Grammar School Case 1410 YB 11
6. Mogul Steamship Co. vs. Mc Gregor Grow and Co.,
1892 AC 25
7. Mayor of Bradford Copn. vs. Pickles, (1895) AC
587
8. Glasgow Copn. Vs. Taylor (1922) 1 AC 44
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General Conditions- Liability
For A Tort
Alterum non leadere- to hurt nobody by word or
deed
An action of tort is usually a claim for pecuniary
(monetary) compensation in respect of damage
suffered as the result of the invasion of a legally
protected interest.
Tort consists of an act or omission by the
defendant which causes damage to the claimant.
The damage must be caused by the fault of the
defendant and must be a kind of harm recognised
as attracting legal liability.
This model can be represented:
act (or omission) + causation + fault +
protected interest + damage = liability
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Constituent of tort
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Act or omission
Either a wrongful act or an omission which is
illegally made will make a person liable.
Wrongful Act: Eg; Violation of a legal right by
committing the act of trespass/ defamation.
Example of omission
Glasgow Corp v Taylor [1922] 1 AC 44
7 year old died after eating poisonous berries
in park. Def. knew of the berries but took no
precautions against children. Omission of
legal duty to put proper fencing to keep the
children away.
It does not include moral or social wrong..-Somebody fails to save a starving man
Municipal
Corporation
Delhi
v
Subhagwanti [AIR 1966 SC 1750]
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NO COMPENSATION
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COMPENSATIO
N
Legal damage MAXIM- Injuria sine damnum
MEANS an infringement of a legal right without
any actual loss or damage.
In which case, the person whose right
has been infringed has a good cause of
action. And hence will be entitled to
compensation
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ASHBY V WHITE (1703) 2 ER 938
Mr Ashby was prevented from voting at an
election by the misfeasance of a constable, Mr
White, on the apparent pretext that he was not a
settled inhabitant..
Held- If the plaintiff has a right, he must of
necessity have a means to vindicate and maintain
it, and a remedy if he is injured in the exercise or
enjoyment of it, and, indeed it is a vain thing to
imagine a right without a remedy; for want of
right and want of remedy are reciprocal...
Violation of a right (right to vote ) of the plaintiff
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BHIM SINGH V STATE OF J&K
AIR 1986 SC 494
FACTS a member of the Legislative Assembly of the State of
Jammu and Kashmir was arrested by the police. The
unfortunate Mr Bhim Singh, who was so arrested,
was not produced before the Magistrate for a period
of four days and further was kept hidden in an
undisclosed location.
Before the Supreme Court of India said that the
State machinery violated human rights.
It is clear that the unfortunate incidents visited upon
Mr Bhim Singh were a result of a particular session of
the Legislative Assembly where his vote may have
been crucial. Since Mr Bhim Singh had later been
freed, the courts were left with a dilemma as to the
remedy to be provided to him.
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Marzetti v Williams Bank
[(1830) 1 B & Ad 415]
It has been held that an action will lie
against a banker, having sufficient
funds in his hands belonging to the
customer, for refusing to honour his
cheque, although the customer has
not thereby sustained any actual loss
or damage.
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Damnum sine injuria
In some cases the act or omission of the
defendant may have caused damage to
the claimant but the claimant may have no
action as the interest affected may not be
one protected by law. Lawyers refer to this
as damnum sine injuria or harm without
legal wrong.
It means that the plaintiff may suffer
actual or substantial loss without any
violation or infringement of legal right and
therefore no action lies in such cases.
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EXAMPLES
Damage suffered from
justifiable acts
Loss inflicted on individual traders
by competition in trade
Where the damage is done by a
man acting under necessity to
prevent a greater evil
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Gloucester Grammar School Case (1410) Y.B. 11
The defendant, a school master, set up a rival
school to that of the plaintiff. The boys from the
plaintiffs school flocked to the defendants.
Because of the competition the plaintiff has to
reduce their fees. Held that the plaintiffs had no
remedy for the loss thus suffered by them.
Mogul Steamship Co Ltd v McGregor, Gow & Co
[1892] AC 25
A group of ship owners formed an association to
raise their profits. The association agreed to limit
the number of ships sent by the association to
different ports, to give a 5% rebate on freights to all
shippers of stock who dealt only with members, and
that agents of members would be prohibited from
dealing with anyone in the association if they did
not deal exclusively with people in the association.
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HELD
If any member wished to withdraw, they would have to
give notice.
Mogul Steamship Co Ltd had been excluded. When it
sent ships to the loading port to pick up cargo, the
association sent more ships and underbid Mogul
Steamship Co Ltd. The association also threatened to
dismiss agents or withdraw rebates from anyone who
dealt with Mogul Steamship Co Ltd. Mogul Steamship
Co Ltd alleged there was a conspiracy to injure its
economic interests and sued for compensation.
The House of Lords, affirming the Court of Appeal's
decision, held that the acts were done with a lawful
object of protecting and increasing the associations
profits. Because no unlawful means had been
employed, Mogul Steamship Co Ltd had no cause of
action.
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P. Seetharamaya v Mahalakshmi
AIR 1958 AP 103
The owner of land on or near the river has a
right to build a fence upon his ground to
prevent damage to his ground by the
overflow of river even though as a result of
which the over-flowing water is diverted to
the neighbors' land and causes damage (it is
to be noted that if the flood water already
entered ones land, the law does not permit
him to transfer it upon another's land)
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Dickson v Reuters Telegram Co.
(1877) 3 CPD
FACTS A sent a telegram to B for the shipment of certain
goods. The telegram co. by a mistake delivered the
telegram to C. C acting on the telegram sent the
goods to A who refused to accept the goods stating
that he had ordered the goods not from C but from B.
Held
C had no cause of action against the telegram
company for the company did not owe any duty of
care to C and no legal right of C could, Therefore,
said to have been infringed. Defendant company
owed a contractual duty only to the sender of the
telegram. Since they did not owe any duty to the
recipient of the telegram, they were not liable.
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USHABEN V. BHAGYALAXMI
CHITRA MANDIR
AIR 1978 Guj 13
The plaintiffs sued for a permanent injunction
against the defendants to restrain them from
exhibiting the film named Jai Santoshi Maa. It was
contended that the film hurt the religious feelings of
the plaintiff in so far as Goddesses Saraswati, Laxmi
and Parvati were depicted as jealous and were
ridiculed.
It was observed that hurt to religious feelings had
not been recognized as a legal wrong.
Moreover, no person has a legal right to enforce his
religious views on another or to restrain another
from doing a lawful act, merely because it did not
fit in with the tenets of her particular religion. Since
there was no violation of a legal right, request of
injunction was rejected.
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Acton v. Blundell
(1848) 12 M&W 324
The defendants by digging a coal pit intercepted
the water which affected the plaintiffs well, less
than 20 years old, at a distance of about one
mile. Held, they were not liable.
It was observed: The person who owns the
surface, may dig therein and apply all that is
there found to his own purposes, at his free will
and pleasure, and that if in the exercise of such
rights, he intercepts or drains off the water
collected from underground springs in the
neighbours well, this inconvenience to his
neighbour falls within description damnum
abseque injuria which cannot become the
ground of action.
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Mental element in tort
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Allen v Flood [1898] AC 1
FACTS:
A trade union official told an employer his
members would not work alongside the
claimants. The employer was pressured to
get rid of the claimants. For the loss of
work, the claimants sued the trade union
official. An important fact is that all the
workers in the case were only hired day
by day. Therefore, the trade union official
had never threatened a breach of
contract because the contracts began
afresh with a new day's work.
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HELD:
The House of Lords held that even though
there was a malice , this could not render
the conduct unlawful, because the effect
actually complained of (not rehiring) was in
itself entirely lawful.
Lord Davey pointed out an employer may
refuse to employ [an individual] for the most
mistaken, capricious, malicious or morally
reprehensible
motives
that
can
be
conceived, but the workman has no right of
action against him.
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Town Area Committee v Prabhu Dayal
AIR 1975 SC
Plaintiffs case was that he had made construction of
16 shops on the old foundations of the building
known as Garhi and the defendant Town Area
Committee acting through its Chairman and ViceChairman, who are defendants 2 and 3 demolished
these constructions. By this demolition plaintiff
suffered a loss of Rs. 1,000.
According to him the notice under Section 186 of the
U.P. Municipal Act was bad as it gave to the plaintiff
only two hours time to demolish the constructions
and not a reasonable time as contemplated in
Section 302 of the Act. It was also asserted that
demolition, after this notice was bad as the notice
was served at a time when the plaintiff was out of
station. The action was said to be mala fide.
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HELD
IF A person constructs a building
illegally, the demolition of such
building by the municipal authorities
(though motivated by malice) would
not amount to causing injuria to
the owner of the property.
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THE MAYOR OF BRADFORD CORPORATION V.
PICKLES
[1895] AC 587 (HL),
a lawful act does not become unlawful merely
because of an evil motive.
The defendant extracted percolating water in
undefined channels with the result that the water
supply to the plaintiffs reservoir was reduced. The
defendants motive in doing this was to force the
plaintiffs to buy his land at his price. The action
failed, as the defendant had a right to extract the
water. As he had such a right, his motive, even if
malicious, was irrelevant.
If it was a lawful act, however ill the motive
might be, he had a right to do it. If it was an
unlawful act, however good his motive might
be, he would have no right to do it
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Hollywood Silver Fox Farm Ltd. v.
Emmett,
[1936] 2 KB 408 (CA)
FACTS Where the plaintiff company carried on the
business of breeding silver foxes on its land.
During the breeding season, the vixens are very
nervous and liable, if disturbed, to refuse to breed,
to miscarry, or to kill their young.
The defendant was an adjoining landowner who, as
a result of a dispute with the plaintiff, made his son
discharge guns on his own land as near as possible
to the breeding pens for the sole purpose of
injuring the plaintiffs business by Interfering with
the foxes breeding.
The plaintiffs sought an injunction to restrain the
defendants acts.
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DEFENDANT CONTENTIONS
the
plaintiffs
business
required
an
extraordinary degree of quiet and that
therefore they could not prevent the defendant
from using his land in a way that would not be
a nuisance apart from the special use to which
the plaintiff put its land, and
the defendant had a right as proprietor to
shoot on his own land and that his intentions
were irrelevant in that they could not make
a lawful act unlawful.
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HELD
The court granted the injunction and held that in
an action for nuisance by noise, the motive of
the noise-maker must be Considered in
determining whether or not he was using his
property in a legitimate and reasonable manner.
The court further observed that:
No proprietor has an absolute right to create
noises upon his own land, because any right
which the law gives him is qualified by the
condition that it must not be exercised to the
nuisance of his neighbours or of the public. If he
violates that condition he commits a legal
wrong, and if he does so intentionally he is guilty
of a malicious wrong in its strict legal sense.
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Malicious prosecution
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In nuisance.
Christie v Davey [1893]
Plaintiff and defendant lived in adjoining
houses. The plaintiff gave music lessons
and this annoyed the defendant. In
retaliation the defendant banged on the
wall and shouted while the lessons were in
progress. The plaintiff was held to be
entitled to an injunction because of the
defendants malicious behaviour.
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In cases of defamation, when
qualified privilege or fair comment is
pleaded as a defence, motive
becomes relevant. The presence of
malice or evil motive negatives good
faith and the defendant cannot avoid
his liability by the defence of
qualified privilege in such a case.
Malice or evil motive may result in
aggravation of damages.
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Balak Glass Emporium vs United India
Insurance Co. Ltd. And Ors. on 27/7/1993
Plaintiff-Firm was occupying the ground floor of a
building and it was dealing in mirrors, plywood etc.
Joseph ran a photo studio in the name and style
"Durbar Photo Studio". When the Managing Partner
of the plaintiff went to the shop on 21-11-1984, he
found that the shop room was flooded with water,
escaped from the defendants' studio room and the
articles kept in the plaintiffs shop were damaged.
He sent for the proprietor of the Studio and PW 4
and some others entered the studio, when it was
opened by DW 1 -- the son of Joseph. It was found
that water was flowing through the water tap and
the outlet of the sump/tank was closed, and water
tank was overflowing, and that caused the mischief.
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The plaintiff alleges that himself and
Joseph were not in good terms, that Joseph
wanted to spite him and on 20-11-1984
when the studio was closed in the night,
the water tap was deliberately left open to
cause mischief and the entire incident was
the result of the intentional acts of Joseph.
whether the damage incurred by the
plaintiff is the result of the malicious act of
late Sri Joseph?
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HELD
It is proved that the tap was fully opened
and the drain was closed. When that is taken
in the background of the evidence of PW1
and the plea in the plaint that there was
enmity between the plaintiff and Joseph, the
inference irresistible, is that it was an
intentional act of Joseph, which resulted in
the loss suffered by the plaintiff. So, it is a
case where plaintiff suffered loss due to the
malicious acts of Joseph and the claim falls
within the purview of malicious damages.
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Mal-feasence, Mis-feasence and Nonfeasence
Malfeasence- commission of an unlawful act
which are actionable per se and do not require
proof of intention or motive. Eg. Trespass.
Misfeasence- improper doing of some lawful act
for example where there is negligence
Non-feasence- omission to do some act when
there obligation to perform.
The
expressions
misfeasance
and
nonfeasance, and occasionally malfeasance,
are used in English Law with reference to the
discharge of public obligations existing by
common law, custom or statute.
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Distinction
between
Misfeasance,
nonfeasance and malfeasance
Misfeasance is the improper doing of
an act which a person may wilfully
do. Nonfeasance means the omission
of an act which a person ought to do.
Malfeasance is the doing of an act
which a person ought not to do at all.
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Capacity under law of torts
Convict: D. B. Y. Patnaik v. A. P, AIR 1974 SC 2092
Convicts are not by mere reason of the conviction,
denuded of all the fundamental rights which they
otherwise possess. A prisoner is deprived of
fundamental rights like the right to move freely
throughout the territory of India or the right to
practice a profession. But other freedoms like the
right to acquire, hold or dispose of property are
available to the prisoner. He is also entitled to the
right guaranteed by Art. 21 that he shall not be
deprived of his life or the personal liberty except
according to the procedure established by law
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SCHOO
LS OF
TORT
LAW
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LAW OF TORTS
LAW OF
TORT
43
Two theories
Winfield, Pollock
All injuries done by one
person to another are
torts, unless there is
some justification
recognized by law.
Eg. If I injure my
neighbor, he can sue me
in tort whether or not the
wrong has a particular
name assigned to it, like
assault, battery
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Salmond
There is a definite
number of torts outside
which liability in tort
does not exist.
Eg. I can injure my
neighbor as much as I
like without fear of him
suing me in tort provided
my conduct does not fall
within the rubric of
assault, deceit, slander,
etc.
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Two theories
All unjustifiable harms
are tortious.
Enables courts to
create new torts
Resembles saying:
my duty is to hurt no
one by words or
deeds.
Eg. Absolute liability,
negligence (19th
century)
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This theory consist of a
neat set of pigeonholes, each containing
a labeled tort. If the
defendants wrong does
not fit into any of these
pigeon-holes, he has
committed no tort.
Just as criminal law
consists of a body of
rules establishing
specific offences..
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Victoria Park Racing and
Recreation Grounds Co. Ltd
v. taylor, 1937
Dr Winfield: it does not
follow that all harms are
tortious or that any1 who
has been harmed by his
neigbour can go to the court
with the confident
expectation of being
accorded a remedy..he will
recover nothing if he alleges
a specific tort and fails to
prove the essential
ingredients.
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Damnum sine
injuria: parties
were not able to
get damages
although they
suffered
substantial losses.
46
Many instances in
which plaintiff put
forward a new
claim such as
mental pain
followed by
nervous shock and
was awarded
damages. ( no
label required).
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Whether it is a law of tort or law
of torts?
Criticism of salmond-pigeon holes
the law of torts is steadily expanding
and the idea of its being cribbed,
cabined and confined in a set of
pigeon-holes is untenable
Both the theories are correct from
their own perspective this view was
later on adopted by Winfield.
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Discharge of torts /
Extinction of liability of torts
Death
Waiver by election
Accord and satisfaction
Release
Acquiescence
Judgment
Limitation
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