IMPORTANT QUESTIONS TORTS
Introduction
1. Tort v contract x 4
What is tort ?
What are contracts ?
Difference- torts
Common law is generally uncodified.

This means that there is no comprehensive compilation of legal rules and statutes.

While common law does rely on some scattered statutes, which are legislative decisions,
it is largely based on precedent, meaning the judicial decisions that have already been
made in similar cases.

These precedents are maintained over time through the records of the courts as well as
historically documented in collections of case law known as year books and reports.
 The precedents to be applied in the decision of each new case are determined by the
presiding judge.


Common law functions as an adversarial system, a contest between two opposing
parties before a judge who moderates and decides.
Violation of right in rem.

Duties fixed by law, ex, negligence.

No concept of privity.

Unliquidated damages.

ContractsCivil Law, in contrast, is codified.

Countries with civil law systems have comprehensive, continuously updated legal
codes that specify all matters capable of being brought before a court, the applicable
procedure, and the appropriate punishment for each offense.

Such codes distinguish between different categories of law:

Substantive law establishes which acts are subject to criminal or civil prosecution,
procedural law establishes how to determine whether a particular action constitutes a
criminal act, and penal law establishes the appropriate penalty.


In a civil law system, the judge’s role is to establish the facts of the case and to apply
the provisions of the applicable code.
Violation of right in personem.

Duties fixed by the parties themselves.

Privity is an important aspect of contract.

Liquidated damages.
2. Tort v crime x 5
Crime
Tort
A Crime is wrongdoing which hampers the social order
of the society we live in.
A Tort is wrongdoing which hampers the individual or
his property.
Crime happens mostly intentionally. It is a deliberate
act which people do to get some unlawful benefits.
It happens mostly due to negligence. Tort is hardly
intentional. But it is still damaging to the individual.
Crime impacts the well-being of society in general. The
legal bodies try to give proportional punishment to law
offenders in order to maintain peace in society.
Tort impacts the well-being of the individual. The
aggrieved party seeks compensation for the damages.
Crimes are presented in the Criminal Court.
Torts are presented in the Civil Court.
Compensation for crimes is already mentioned in the
book of law. Whenever the court has to decide the
amount of compensation, they simply refer to the law
book. In certain cases, judges use their personal
judgments too.
Compensation for torts is given on the basis of the
damages to the aggrieved party.
3. It is said that the application of English law in India as rules of justice, equity and
good conscience has been of selective application. Critically analyze this statement
with relevant examples. Explain how the law of torts has an ever-expanding and
growing horizon of tortuous liability in the present society. X 2
4. Scope (and purpose) and importance of torts in India x 3
The word tort originates from the French language. It is equivalent to the English word
“wrong” and Romanian law’s term “delict”. It is derived from the Medieval Latin word
“tortum” which means “wrong” or “injury” which itself was further developed from the Old
Latin word “torquere” which means “to twist”. It is a breach of duty which amounts to a civil
wrong. A tort arises when a person’s duty towards others is affected, an individual who
commits a tort is called a tortfeasor, or a wrongdoer. And where there are multiple
individuals involved, then they are called joint tortfeasors. Their wrongdoing is called as
a tortious act and they can be sued jointly or individually. The main aim of the Law of Torts
is the compensation of victims. Section 2(m) of the Limitation Act,1963, Addresses tort as
being a civil wrong which is not just exclusively a breach of contract or a breach of trust.
Definitions by various thinkers- According to John Salmond, He addresses tort as being
only a civil wrong which has unliquidated damages (those damages for which there is no
fixed amount) in the form of remedy and which is not just exclusively the breach of contract
or the breach of trust or breach of merely fair and impartial obligation.
According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty
primarily fixed by the law, this duty is towards the other people generally and its breach is
redressible by an action for unliquidated damages.
According to Fraser, A tort is an infringement of a right in rent of a private individual giving
a right of compensation at the suit of the injured party.
Objectives of a tort
1. To determine rights between the parties to a dispute.
2. To prevent the continuation or repetition of harm i.e. by giving orders of
injunction.
3. To protect certain rights of every individual recognized by law i.e. a person’s
reputation.
4. To restore one’s property to its rightful owner i.e. where the property is wrongfully
taken away from its rightful owner.
Essential Elements of a tort
Three essential elements which constitute a tort are,
1. A Wrongful act or omission, and
2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and It should be of such a nature
that it should give rise to a legal remedy in the form of an action for damages.
What is a Wrongful Act?
A wrongful act can be either morally wrong or legally wrong and can also be both at the same
time.
A legal wrongful act is one which is recognized by law and affects one’s legal right. The act
must be in violation of the law to be a legal wrongful act. An act which seems Prima
facie (based on the first impression) innocent may also end up infringing somebody else’s
legal right. Liability for a tort arises when the wrongful act being complained of amounts to
an infringement of a legal private right or a breach or violation of a legal duty.
For example, if someone whose religion does not allow him/her to eat non-vegetarian food,
still eats it then he/she will be morally wrong but not legally wrong. And if a person whose
religion doesn’t allow him or her to eat non-vegetarian and he or she strictly follows that
religion is forcefully fed by someone then it is a legal wrong on the part of the person forcing
the other one to eat that food which he or she does not want to eat.
What is a duty imposed by law?
A duty of care is one which is imposed on every individual and requires a standard of
reasonable care that he could see as being harmful towards others. Hence, a duty imposed by
law is a duty which is legally enforceable in the Indian courts.
What is a Legal damage?
Literal meaning of damage- to affect injuriously. The term “damages” is often confused with
the term “damage”, while they may look similar, they have different meanings and are
significantly distinct from each other, “damages” refers to the compensation sought for, while
“damage” refers to actual loss or injury.
5. Define the term ‘tort’ and explain its characteristics. Discuss the reason for the
slow development of the law of tort in India.
Definition: The term tort is the French equivalent of the English word ‘wrong’ and of the
Roman law term ‘delict’. The word tort is derived from the Latin word tortum which means
twisted or crooked or wrong. Hence tort is a conduct which is twisted or crooked and not
straight. As a technical term of English law, tort has acquired a special meaning as a species
of civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause of
action and for which compensation is recoverable. In spite of various attempts an entirely
satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as
a civil wrong independent of contract for which the appropriate remedy is an action for
unliquidated damages.
Characteristics: A tort is a civil wrong: One must be aware that there are two types of
wrongs: Civil and Criminal wrong. Tort comes under the purview of civil law and its wrong
is known as a civil wrong. The distinction becomes important because unlike in criminal law
there is no punishment in civil laws. Further compensation is granted in form of unliquidated
damages which is not the case in criminal law.
A tort is an infringement of a right in rem: There are two types of rights, Right in rem and
right in persona. While the right in rem is available against the whole world, right in persona
is available against any particular individual.
Every person has the right to the enjoyment of his own property and any person who has
violated or infringed this will be sued and liable to pay the compensation in the form of
unliquidated damages. This is known as right in rem which is available against the whole world.
This way the tort law in right in rem and is available against the whole world. There is no need
for any pre-existing relation, the only requirement is the existence of right and that right has
been breached by a person.
Right in rem is not specific to any particular individual, which is the beauty of the Law of Torts,
one can sue a person who has breached a right with no relation at all.
Torts deal with cases related to legal rights: It is fair enough that tort deals with an only
violation which is in relation to breach of a legal right. Though a person may have suffered
economic or social loss, if it hadn’t breached any legal right, the person won’t have any
recourse in court under tort law. Covered under this characteristic there are two famous cases
elaborating the topic. The first of this is Gloucester Grammar School case, in this case the
defendant had opened a school in front of an already established school which resulted in a
decrease in the revenue of already established school, but the already established school had
no recourse under Law of torts though there has been economic loss to the established school
as there is no violation of any legal right. The following case is adequate representation of
Maxim Damnum Sine Injuria where there is damage to the party but no legal injury has been
done which means no violation of any legal right, hence damage or loss without any legal loss.
Thus, the court will not be able to take any action against it.
The exact opposite of the following Maxim is Injuria Sine Damno where there is a legal injury
to the party but no actual or physical harm to the party. This way the party will have recourse
to court and seek damages even when they haven’t caused any damages. The most common
case of the subject is Ashby v. White, in this case, a person was stopped from voting despite his
name on the voters list and proof of identity but the person whom he wanted to vote for won
the election, hence no loss was caused to him but his legal right was violated, hence he was
entitled to damages and compensation.
Remedy in the form of Compensation: In torts Law, the remedy is awarded in the form of
unliquidated damages which are calculated by the court on the basis of loss caused. The method
is different from what is in the law of contracts where damages are already mentioned in the
contract or can be easily calculated according to the agreed terms. Also, from what is in
criminal law where punishment is given in the form of imprisonment.
These differences are owing to the nature of law and the objective that they fulfil in the society,
such as criminal law wants to create deterrence in the society so it recommends punishment so
that it can be set as an example in the society and no one should think of doing it again.
Similarly, in contracts law, the purpose is business fulfilment or shape a particular transaction,
so they have damages in their requisite forms such as special performance or pre-calculated
damages. So is the case in torts law, the case is to restore the parties in their original position
owing to this reason the remedy is given in the form of compensation so that the party can be
restored to the original position.
Rights are to be fixed by law: To claim a remedy for the violation of rights, the rights should
be recognized by the government. These rights can’t be self-declared rights for his own
purpose, nor can theese be based on the previous consent of the parties. The right should be
acceptable by the government and these rights changes according to the needs of the society.
The government should recognize there exist duty on the defendant which he has failed to do
and caused breached and that breach was proximate for the loss caused otherwise the claim
will fail to sustain.
Law of Torts is totally based on precedents: Though precedents play an important role in the
development in any law, but in the case, the law of torts is the only source of law. There is a
statute or act that specifically deals with the Law of torts. Through this characteristic, the
judgements of common law become an important and only source that recognizes these rights
as a subject of law.
Torts law is uncodified: Codified laws are laws, which have written statutes and acts on that
subject and changes take place by the process of amendment in the parliament, it can be
distinguished from uncodified laws which don’t have any written statutes or acts and have to
rely on precedents and case laws and change can be possible without the intervention of the
government. Thus, the law of torts is totally based on precedent and developed through
different case laws, it can be healthily said that law of tort law is uncodified unlike Criminal
law and Contract law which are completely codified, and precedents don’t play a major role
that it plays in Laws of Torts.
6. Liability for omissions x 2
7. “If the damage would not have resulted but for the defendant’s wrongful act, it
would be taken to have been caused by the wrongful act”. Explain with the help
of relevant case laws and illustrations.
8. Role of malice
Malice means spite or ill-will in the popular sense. When an act is done with bad intentions,
called Malice. An act or statement becomes malicious if used for purposes other than those
sanctioned by the law authority.
It is possible to discuss the term malice in both legal and popular sense. In the legal sense, it
means’ intentional wrongdoing, without a just cause or excuse or a lack of a reasonable or
probable cause’ and it is known as ‘malice in law’ . In the popular sense, it means’ an improper
or evil motive’ and it is known as ‘malice in fact.’
It emphasizes here that this wrongful act does not become lawful merely because the motive is
good. Similarly, a lawful act does not become wrongful because of an improper, evil motive
or malice.
In the case of Town Area Committee v. Prabhu Dayal AIR 1975 All 132, the court observed
that “mere malice cannot disentitle a person from taking recourse of law for getting the wrong
undone. It is, therefore, not necessary to investigate whether the action is motivated by malice
or not.”
Exception to the rule: In the following cases, malice becomes relevant in determining tortious
liability:

When the act is otherwise unlawful and wrongful intention can be gathered from the
circumstances of the case.
In Balak Glass Emporium v. United India Insurance Co. Ltd., in a multi-storeyed building, the
water from the upper story, under the control of the defendant escaped to the lower floor,
occupied by the plaintiff. There was evidence of ill will between the plaintiff and the defendant.
It was evidence of ill will between the plaintiff and the defendant. It was found that not only
the tap of the upper floor was left fully open, but the outlet of the tank was also closed. There
was only one inference that the said act was done by the defendant, with the wrongful intention,
and hence, the plaintiff was held entitled to get damages for the same.

Malice concerning the litigant to be demonstrated in torts of deceit, malicious
prosecution.

The presence of malice in cases of defamation negates good faith and the defendant
cannot avoid liability by the defense of qualified privilege in such a case.

Causing personal discomfort by an unlawful motive may turn a qualified lawful act
into a nuisance.

Malice which results in aggravation of damages.
9. Bhopal gas tragedy
Facts
On 2nd and 3rd December 1984, the gas known as methyl isocyanate leaked from the
pesticide manufacturing plant of the Union Carbide Industry located at Bhopal, Madhya
Pradesh. The toxic gas leaked over the entire city, causing a death toll of approximately 4000
[four thousand] people, and incapacitating nearly 1.5 lakh people. In February of the
successive year, the Indian Government filed a case, Union Carbide Corporation v. Union of
India, claiming an amount of 3.3 billion dollars from the said company as compensation for
the lives lost and damages caused. However, on forum non-conveniens, the case was
transferred back to India. There was an out-of-court settlement that took place for 740 million
dollars, which was highly criticized by the courts and the society at large.
Issues Raised
1. What would be the liability of the industry?
2. Whether the tragedy raises the issue of absolute liability?
Judgment
The Supreme Court upheld the validity of the settlement order but ruled out the provision
quashing any criminal liability on the industry. The court stated that even if the company did
take all precautions necessary for preventing such an outbreak of hazardous gas, the
responsibility still lies in their hands. If not for the settlement order, this principle of absolute
liability would be applied in total, and the industry would have been absolutely liable for all
damages and casualties of citizens caused by its hazardous substance. This is where the
concept of absolute liability was awakened, even though only later applied in principle in the
Oleum Gas Leak Case.
Damnum sine injuria
10. Infringement of legal right as a prerequisite. X 3
11. Injuria sine damno and damnum sine injuria
The law of torts is a collection of all the circumstances in which court gives a remedy by way
of damages, for legally unjustified harm or injury done by one to another person. There are
three elements which need to be proved before constituting a tort:1. There must be an act or omission on the part of the defendant.
2. That act or omission should be in violation of a legal right vested in the plaintiff.
3. The wrongful act or omission thus done by the defendant is of such a nature to give
rise to a legal remedy.
These 2 maxims fall under the category of qualified rights, & in the cases of qualified rights
there is no presumption of damages and the violation of such rights is actionable only on the
proof of damages.
Damnum Sine Injuria
Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages
in which there is no infringement of any legal right which are vested with the plaintiff. Since
no legal right has been infringed so no action lies in the cases of damnum sine injuria. The
general principle on which this maxim is based upon is that if one exercises his common or
ordinary rights, within reasonable limits, and without infringing other’s legal right; such an
exercise does not give rise to an action in tort in favour of that other person. Damages can be
in any form either in the form of any substantial harm or loss suffered from respect to the
money, comfort, health, etc.
It is an implied principle in law that there are no remedies for any moral wrongs, unless and
until any legal right has been infringed. Even if the act or omission such done by the defendant
was intentional, the Court will not grant any damages to the plaintiff. As was cited in the case
of Mayor & Co. of Bradford vs. Pickles (1895) in which the corporation of Bradford filed a
suit against the defendant alleging that the act of defendant by digging a well in the adjoining
land owned by the defendant has cut the underground supply of water in the corporation’s well
hence causing them monetary losses since there was no adequate supply of water to discharge
for the people living under the jurisdiction of the corporation. It was held that the defendant is
not liable since they had not violated any legal right of the plaintiff.
In another case of Gloucester Grammar School (1410) in which a schoolmaster, set-up a rival
school to that of the plaintiff and since because of the competition the plaintiff had to reduce
their fees from 40 pence to 12 pence per quarter. Thus claimed for compensation from the
defendants for the losses suffered. It was held that the plaintiff had no remedy for the losses
suffered, since the act though morally wrong has not violated any legal right of the plaintiff.
The court presumes in cases where the legal right has been infringed that damages have to be
awarded, but in cases where no legal right has been infringed, the maxim Damnum sine Injuria
applies & no remedies are available for the same. So, it can be rightly said that an act which is
lawfully or legally done, without negligence, & in the exercise of a legal right, such damages
as comes to another thereby is damage without injury.
Case law on Damnum Sine Injuria
Mogul steamship co. ltd vs. McGregor, Gow & co.
In the following case of Mogul steamship co. ltd vs. McGregor, Gow & co., the plaintiff was
an independent ship-owner who used to send his cargo port to obtain cargo from China to
England. An association of 4 ship-owners, also the defendants in the following case offered a
special concession to customers to oust their rival, the plaintiff in this case. The plaintiff under
these circumstances suffered loss and sued all four of them for compensation of the losses he
suffered. Since, the general principle of Damnum Sine Injuria expresses that ‘if one exercises
his common or ordinary rights, within reasonable limits, and without infringing other’s legal
right; such an exercise does not give rise to an action in tort in favour of that other person.’
Thus, though morally wrong there are no legal obligations for the acts of the defendants. This
case typically concerns the economic tort of conspiracy to injure the rights of the plaintiff. It
was held that the combination of workmen and an agreement among them was a lawful act
according to the common law and perhaps enforceable inter-se but not indictable.
The court of appeal and the House of Lords held that defendants had done nothing unlawful.
The House of Lords observed that the defendants have done so to extend their trade to increase
their profits, although with the intention of injuring plaintiff.
The court of appeal held by a majority that the action taken was all done within the terms of
the law. It was held that the plaintiff in the case did not complain of any trespass, violence,
force or any act which infringes the legal right of the plaintiff. Hence, the defendants have done
nothing more against the plaintiff than to pursue the bitter end of competition waged in the
interest of their own trade. Nor there is an element of illegality in the fact of combination among
the defendants.
In this case, it was observed that the damages were done to the plaintiff morally but with legal
perspective hence no legal injury was done to the plaintiff which follows the general principle
of the maxim “damnum sine injuria” which states that no legal remedies are awarded for moral
wrongs unless their legal rights are violated.
The plaintiff failed to prove that any legal injury was suffered by the acts of the defendants and
hence in presence of no legal injury the defendants are not applicable for any damages suffered
to the plaintiff since all the actions done by the defendants were morally wrong but all the acts
were done in a lawful way.
Injuria Sine Damno
Injuria sine damno is a violation of a legal right without causing any harm, loss or damage to
the plaintiff and whenever any legal right is infringed, the person in whom the right is vested
is entitled to bring an action. Every person has an absolute right to his property, to the immunity
of his person, and to his liberty & infringement of this right is actionable per se. A person
against whom the legal right has been infringed has a cause of action such that even a violation
of any legal right knowingly brings the cause of action. The law even gives the liberty that if a
person merely has a threat of infringement of a legal right even without the injury being
completed, the person whose right has been threatened can bring a suit under the provisions
of Specific Relief Act under Declaration and injunction.
For Example:- If a person is wrongfully detained against his will, he will have a claim for
substantial damages for wrongful imprisonment even if no consequential loss was suffered pon
the detention.
As was cited in the case of Ashby Vs. White (1703) wherein the plaintiff was a qualified voter
at the parliamentary elections which were held at that point of time. The defendant, a returning
officer wrongfully refused to take the plaintiff’s vote. The plaintiff suffered no damage since
the candidate which he wished to vote already won the elections but still, the defendants were
held liable. It was concluded that damage is not merely pecuniary but injury imports a damage,
so when a man is hindered of his rights he is entitled to remedies.
Injuria sine Damno is even applicable in the cases of trespass as was observed in the case
of Sain Das Vs. Ujagar Singh (1940) that nominal damages are usually awarded and the
principle of injuria sine damno is applicable to an immovable property when there has been an
unjustifiable intrusion on the property in possession of another. It was also concluded that the
rule cannot be extended to every case of attachment of property irrespective of the
circumstances.
So in total, the maxim Injuria Sine Damno refers to the remedies which are provided in the
form of damages or compensation in violation of any legal right such that if the legal right is
violated then action lies even if there is no harm to another. In other words, it is an infringement
of a right where no loss is suffered but it creates a cause of action.
Case law on Injuria sine Damnum
Bhim Singh Vs. State of Jammu & Kashmir
In the following case of Bhim Singh vs. State of Jammu & Kashmir, Mr Bhim Singh, an MLA
of Jammu & Kashmir was arrested & detained in police custody & was deliberately prevented
from attending the sessions of the legislative assembly to be held. There was also a voting
session which was going to be held and since he was not allowed to go. At the assembly session
where his vote was very important. Though the person to whom he wanted to vote won but his
right to vote was infringed.
He was arrested and was not even presented before the court for four days and was kept in a
hidden place. The case is all about the violation of personal liberty where the police though
obtaining remand of the arrested person, not producing him before the magistrate within the
requisite period. There was a gross violation of rights under Article 21 & Article 22.
It was held that there was an arrest with the mischievous & malicious intent & the plaintiff was
entitled to the compensation of Rs. 50,000 since there was an arrest of a member of the
legislative assembly while he was on his way to the legislative assembly which resulted in the
deprivation of the right to attend the impending assembly session. In the particular cases of
Injuria Sine Damnum, the court has the jurisdiction to compensate by awarding suitable
monetary compensation.
It was concluded that the member of the legislative assembly was arrested while en route to the
seat of assembly & in consequence of the member was deprived of his constitutional rights to
attend the assembly session & responsibility for the arrest & hence is entitled to reasonable
compensation.
Difference between Damnum Sine Injuria & Injuria Sine Damnum
S.No
Damnum Sine Injuria
Injuria sine Damnum
1.
Damnum sine Injuria refers to the damages
suffered by the plaintiff but no damage is being
caused to the legal rights as there is no violation
of it
Injuria Sine damnum is the legal injury caused
to the plaintiff without any damage to the
physical injury.
2.
It is the losses suffered without the infringement
of any legal right hence creating no cause of
action.
It is an infringement of a legal right where even
if no loss has been suffered by the plaintiff still
creates an actionable cause of action.
3.
No compensation in the form of damages is
awarded by the court.
Compensation in the form of damages is
awarded by the court.
4.
This maxim is for the moral wrongs which have
no action in the eyes of the law.
This maxim is for the legal wrongs which are
actionable if the person’s legal right has been
violated.
5.
The principle of this maxim is that a person
exercises in such a manner within reasonable
limits which does not ground action in tort
merely because it causes damages to other
people
The principle of this maxim is that whenever
there is an invasion of a legal right there creates
a cause of action and the person whose right is
vested is entitled to bring an action.
6.
In this, the plaintiff suffers a loss but has suffered
no legal injury.
In this, the plaintiff suffers legal injury doesn’t
matter they have suffered any loss on that
account.
7.
Damages without injury are not actionable
This is actionable since there is a violation of a
legal right.
Mal/Mis/ Nonfeasance
Malfeasance in Tort Law

Malfeasance is applied when any unlawful act is committed.

It is relevant to those unlawful acts which are actionable per se

no proof is required with.
 For example, trespass.
Malfeasance is a broad term covering any act which is illegal and causes physical or financial
harm to another individual. It is an intentional act of doing something wrong, either legally or
morally. The term malfeasance is utilized in both common law and criminal law to narrate any
act which is unlawful or not identified by law. It is not a different crime or tort but the word
malfeasance is used to n7arrate any act that is criminal or any wrongful act which causes injury
to any person. Under tort law, malfeasance has legal effect in civil court and the defendant can
be sued by the plaintiff for monetary damages. It is an act done with an immoral purpose and
the person has the knowledge that the act which is being committed exceeds the authority of
the person doing the act.
For example, a police officer is about to complete his rounds during his shift. His shift is about
to over and he wants to go home. While he is driving home, he sees that a customer and the
cashier at the gas station are having a heated conversation. The officer was on duty at that time
and he knew that his shift would end in thirty minutes and if he stops there, it would take time
and he will not reach home in time.
After that he thinks, if he is on duty and if any serious issue arises when it is his duty to stop
there and try to handle the situation. The officer was aware that if he will not stop the argument
between the cashier and the customer, it might turn into a fight but he simply ignored it and
went home. Later, the cashier was shot to death and the customer took the cash from the
counter. This accident would not have happened if the police officer had stopped at the place
where the incident took place, the serious consequences would have been avoided.
Whether the act of officer was malfeasance or not? So, the act of officer was malfeasance as
he was aware of his proper protocol and the officer was still on duty at that time when he saw
the incident taking place. The officer knew that he was supposed to stop at the scene in order
to prevent any further argument between the cashier and the customer. The officer chose not
to stop, and his choice led to the robbery and death of a cashier.
Another example of malfeasance is a judge taking bribe from the prosecution. The judge had
the knowledge that it is illegal to take money for giving judgment in favour of a person. Since
the judge knows that his action is illegal, but continues to carry on doing the act anyway, it is
an act of malfeasance.
For example, a school janitor is hired by a principal of a school. The janitor was his relative
and had put false employment history in order to get a salary at a rate higher than the normal
rate as he was facing some financial problems. Knowingly committing a dishonest act with the
motive of getting a higher wage is malfeasance.
It is likewise relevant to the improper performance of some lawful act. For example, assume
that a janitor is cleaning a bathroom in a cafe. If he intentionally leaves the floor wet without
cleaning it properly, he or his boss could be obligated for any injuries caused to any customer
because of the floor which was wet. This is because the janitor owed a duty of care to the people
using the bathroom, and he breached that duty by not cleaning the floor properly.
Misfeasance in Tort Law
It means the “Improper performance of some lawful act”. Misfeasance means carrying out
legal and improper action, but it is done in such a way that it harms others or causes injury to
other people. Sometimes an act of a person causes harm to other people unintentionally. While
all these actions are often mistakes committed by a person, there can be legal consequences for
such mistakes. Attached to those mistakes, misfeasance is the legal term used for an act which
is not illegal but performed in such a way that it harms another individual. There are certain
situations in which a person has to perform a duty in the manner prescribed but the person fails
to perform duty in a particular manner then it will be an act of misfeasance.
Generally, defendants are held liable as the defendant has a duty of care towards the plaintiff
but did not perform the duty properly.
In Calveley v. Chief Constable of the Merseyside Police, it was held that for the tort of
misfeasance it was necessary that the public officer must have acted maliciously or in bad faith.
In the case of Dunlop v. Woollahra Municipal Council, it was held that without malice the
claim for misfeasance could not be accepted.
For example, if a doctor performs an operation by using rusted tools or leaves an alien object
in the stomach during the procedure. Generally, a civil defendant will be liable for misfeasance
as the defendant owes a duty of care towards the plaintiff and did not perform his duty properly,
doing an operation is a lawful act but there is an improper performance of the lawful act.
Another example, a janitor is cleaning a restroom in a restaurant and is irresponsible and leaves
the floor wet without any warning sign or board. In such a case, he or his employer could be
held liable for any injury caused because of the wet floor. This is because the janitor owed a
duty of care toward users of the restroom, and he breached that duty by leaving the floor wet
and therefore would be held liable. It will come under misfeasance as the act was lawful but
there was an improper performance of the lawful act.
In the case of Jasbir Kaur vs the state of Punjab, a newborn baby was missing in the hospital
and staff of the hospital was not aware of it. After searching a lot, the newborn child was found
dead in the washroom and his one eye was squeezed out. The hospital was held liable as there
was negligence on the hospital’s part in performing the act properly. It was misfeasance as the
hospital was negligent and there was improper performance of the lawful act.
Difference between Misfeasance and Malfeasance
Misfeasance
Malfeasance
It refers to the commission of
an unlawful demonstration or
act.
It refers to the improper performance of a lawful act.
If any person is authorized to construct a road and he constructs the road
without putting any sign of warning and if any injury is caused to another
person then it will be considered as an act of misfeasance.
Trespass is malfeasance and
is actionable per se.
Nonfeasance in Tort Law
Nonfeasance is the failure or omission to perform an obligatory or compulsory act. If a person
promises another person to perform a particular act and does not perform it, then it is
nonfeasance as the person was responsible for performing the act. Nonfeasance is an act of
intentionally neglecting to carry out a duty which is an obligation and because of the failure to
perform the duty, someone is harmed or injury has been caused. It harms another person or
causes injury to a person’s property. It is the lack of ability associated with the failure of the
act. Unless and until a person has a pre-existing relationship he will not be held liable for the
failure of the act. It describes inaction rather than action. Court believes that if people are not
creating a dangerous situation then also they must take proper care in order to prevent other
people from a dangerous situation. The relationships in which a person is forced to do
something or is compelled to do something are spouses, family members, school authorities
and students, employee and employers, doctor and patients, etc, their duty is to protect each
other from danger.
In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down in Chandni
Chowk, Delhi, many people were injured and many died. The clock tower was not repaired for
many years and the municipal corporation was required to maintain it. The Municipal
corporation failed to do so and the tower collapsed. The municipal corporation was held liable
as it was their duty to repair the clock which they failed to do. It can be called as nonfeasance
as there was an omission in performing the compulsory act.
Difference between Misfeasance and Nonfeasance
Misfeasance
Nonfeasance
It means “improper performance of some lawful
act”. Misfeasance means carrying out legal and
improper action, but it is done in such a way that it
harms others or causes injury to another person.
Nonfeasance, on the other hand, is an omission
from discharging duty. But that omission should
give rise to an action in torts that must be impressed
with some characteristics, namely, malice or bad
faith.
The term “misfeasance” is utilized in Tort law to
describe any act that is lawful yet which has been
performed inappropriately or in an unlawful
manner.
The term non-feasance describes the failure to do
any act that causes harm to another person.
Difference between Malfeasance, Misfeasance, and Nonfeasance
Malfeasance
Misfeasance
The word “malfeasance” is
derived from the French word
“malfaisance”, which means
“wrongdoing”.
The word “misfeasance” is
derived from the French word
“misfeasance”, meaning “to
mis-do”.
It means the “commission of an
unlawful Act”. Example:
trespass.
It means “improper
performance of some lawful
act”. Example: negligence.
Nonfeasance
The word “nonfeasance” is derived
from the French word “faisance”
meaning “action”, and the prefix
non– which means not.
Failure or omission to perform an
act when there is an obligation to
perform that act. Example: omission
or wrongful act.
Standing of a Person
1. An Air Force vehicle was carrying the members of the Indian cricket team to play
a cricket match at a stadium nearby. On the way, the bus hit a passerby, who was
severely injured. Due to injuries, he died. The dependents of the deceased
instituted suit against the state for claiming damages. Considering this factual
matrix, answer the following questions:
a. Explain whether the act of carrying members of the Indian cricket team to
play a match in an Air Force vehicle amounts to a sovereign function.
b. How far is the distinction between sovereign and non-sovereign functions
relevant in determining the tortious liability of the state?
Introduction
Sovereign immunity is the reasoning given for wrongs committed by the government or its
representatives. Apparently, these are based on public policy grounds. Consequently, even if
all the elements of an actionable claim are present, it is possible to prevent liability by giving
this rationale. The doctrine of sovereign immunity is centred on the principle of Common
Law derived from British Jurisprudence whereby the King does no wrong and that he cannot
be accused of personal negligence or misconduct, and as such cannot be held liable for his
servants’ negligence or misconduct. Another part of this theory is that a State cannot be
prosecuted in its own courts and this is considered as an element of sovereignty.
This theory changed in Indian courts from the middle of the nineteenth century until recently.
When a legitimate claim for damages is brought before the courts and is rejected by an
outdated law, that obviously has no validity, indignation and requests for clarification are
bound to occur. The Indian courts kept shortening the scope of sovereign functions in order to
not let legitimate claims be defeated so that the victims could obtain damages. India’s Law
Commission, too, suggested abolition of this outdated doctrine in its first report. However the
draft bill for the abolition of this doctrine was never passed for numerous reasons, and
therefore it was left on the judge to determine on the integration of this doctrine in
accordance with the Indian constitution.
Sovereign and non-sovereign functions of the state
Sovereign functions of the state can be defined as those functions where the state is not
answerable before the court of law for their performance. These functions are mainly
concerned about the defence of the country, maintenance of the armed forces of the country,
and maintenance of peace in the territory. These functions can only be performed by the state
for external sovereignty and that is why they are not amenable to the jurisdiction of ordinary
Civil Courts and are primarily inalienable functions. But apart from this, there are various
sovereign functions of the state which are not primarily inalienable which include taxation,
police functions comprising maintenance of law and order, legislative functions,
administration of law and policies, and grant of pardon.
While non-sovereign functions are those functions that are amenable to the jurisdiction of an
ordinary civil court and if the state does any tortious act or breach of contract, it will be liable
for the wrong done. But today, it has become very difficult to differentiate between the
Sovereign and non-sovereign functions of the state. According to the case of Peninsular and
Oriental Steam Navigation Co. v. Secretary of State for India, the court for the first time dealt
with the difference between Sovereign and non-sovereign functions. It stated that the
Secretary of the State will not be liable for its sovereign functions and would be liable for
only the commercial functions. This judgment helped the court to understand and interpret
the functions of the state when the question of liability arose. But there was no established
protocol or norm to decide which function is sovereign and which is non-sovereign.
Important judgements differentiating between sovereign and non-sovereign functions of
the state
Following are the judgments which are given by the courts to understand the functions
carried out by the state and how these can be used to differentiate between the sovereign and
non-sovereign functions of the state:
Performance of statutory duty
There is a particular measurement based on which the court can decide whether any function
comes under the sovereign function or not. In the case of Shivbhajan Durga Prasad v.
Secretary of State, in which a chief constable was arrested and prosecuted. Later he was
acquitted. But the petitioner sued the secretary of the state stating that he was liable for the
wrong done by a constable. The court held that the secretary was not liable for the acts of the
constable.
Commandeering goods during the war
In the famous case of Kessoram Poddar & Co. v. Secretary, Commandeering the goods
during the war was said to be a sovereign function. According to the facts of the case, a
company sued the secretary of the state to recover damages since due to defendant’s failure to
take delivery and pay for certain goods bought by the defendant, the company suffered a huge
loss. The Court held that since this order of goods and delivery comes under the
Commandeering of goods which is a sovereign function, such claim is dismissed.
Arrest and detention
Maintenance of law and order comprises the duty of arrest and detention. It is the sovereign
function of the State when any act is performed in good faith. He lodged a complaint about
damages against the Secretary of State in M.A. Kador Zailany v. Secretary of State, where
some police officers wrongfully detained and imprisoned the plaintiff. It was held that, unless
the wrongdoing was performed either by Order or on its behalf and subsequently accepted or
adopted by it, the Government was not responsible for the wrongs committed by its officers.
Similarly, In the case of Gurucharan Kaur v. Madras Province, the D.S.P. instructed the Subinspector of Police to go to the station and prevent other Maharaja from leaving the station.
Upon the train’s arrival, the Sub-Inspector, acting under bonafide intention, however through
mistaken belief, decided that he was to detain the Maharani, not only stopped the Maharani
from boarding the train but also closed the gate in the iron fence and placed two constables
near it. Maharani and her daughter filed a complaint about wrongful confinement. It was held
that the government should not be held accountable for police conduct carried out in good
faith in the fulfilment of its statutory duty. Thus, if the government servant’s unjust
interference is performed in good conscience, the State would not be responsible.
The state shall not be liable for its servant’s acts where such acts are performed without the
authority of law. The state cannot be held liable in these cases as there is no activity on the
part of the State which makes the State responsible. State officials possess a huge
discretionary power that may affect human freedom. However, the state would be held
responsible for misuse of discretion or excessive exercise. In this respect, the Indian Law
Commission has proposed that the State shall be liable if the employees behave negligently or
maliciously, in the execution of legislative duties placed on it or its employees, whether or
not the discretion is involved in the exercise of these duties.
Through the above case laws, it can be interpreted that the State cannot be held accountable
for any wrong done by a public official in the alleged exercise of its legislative duties in the
field of sovereign functions such as income collection etc.
The Court observed that if a tortious crime is performed by a public servant and it necessarily
leads to a claim for damages, the issue to be raised is whether it was the tortious act
committed by the public servant in discharge of constitutional duties applicable to that public
servant and essentially focused on delegating the sovereign functions of the State to him.
Police officers committed the act of negligence when dealing with the assets they had
confiscated from Kasturi Lal in the exercise of their legislative powers. Under the
constitution, state officials’ constitutional powers are reserved to apprehend and detain a
perpetrator, and to seize his suspected belongings. The State was also left free from liability.
Although later, various individuals were against this judgement and found the decision to be
illogical since it wrongly followed the pre-constitutional rule and defined statutory power as a
sovereign power. An official’s immunity that corresponded to the legislative authority was
only valid for the bonafide exercise of power, but not for the violation or misuse of it. The
case of Kasturi Lal is widely criticised by lawyers as it is a clear example of an inadmissible
test being misused.
Malicious prosecution
In the case of Maharaja Bose v. Governor-General in Council, the petitioner sued for false
arrest and malicious prosecution for damages brought against the Governor-General in
Council. According to the facts of the case, the complainant had been travelling from Howrah
to Patna on the defendant’s Railway. He boarded an intraclass compartment in the train. At
around 1 in the night, three Indian soldiers forcefully occupied the plaintiff’s seat when the
said train arrived at Asansol Railway Station. The complainant objected to this, and he told
two Railway workers about it. However, they did not act.
The servants of the defendant to whom the plaintiff had previously complained reached and
made several inquiries, and told the soldiers to vacate it. When such discussion was going on
at the duty assistant station, the station master rushed to the compartment and accused the
plaintiff of pulling the chain and insulted him by using dirty language and he was seriously
assaulted. Without ever hearing again, the plaintiff was pulled out of the compartment and
placed on false charges in the custody of railway police and detained there. It was claimed
that the plaintiff was a prominent performer and was on the way to participating in the Red
Cross dance program at Patna. But the complainant refused to reveal his name and identity,
so he was arrested by the Railway officer.
The Court held that there was no credible reason for the claimant to cut the chain of
communication. The servant of the defendant was justified in treating the claimant for failure
to reveal his name and address to the police. The Court also found the servants of the
defendant genuinely and fairly suspected the plaintiff’s guilt and that rejected the malice. The
suit was dismissed, and no liability for the employee’s act was held by the Government.
Vicarious liability and tortious liability of the State
Vicarious liability is a type of stringent, secondary liability which arises under the agency’s
common law principles i.e. respondeat superior which means the superior’s responsibility for
the actions of his subordinate, or, in a wider sense, the responsibility of any 3rd person who
has the “right, capacity or duty to control” the activities of a violator. The responsibility is
placed not on the tortfeasor but on someone who should be in control of the tortfeasor.
Officers’ moral responsibility for their wrongs has become more vogue with proof indicating
equality between the ruler and the subject in question.
Only when the king found it necessary to assume the responsibility of a public officer was it
then used to pay the fee by the state treasury. Dharma was seen as the civil law binding on
both the king and the subjects. The rulers themselves administered justice as far as possible in
both Hindu law and Muslim law, and the rest was done by the exceptionally learned, honest
judges. The most notable recent phenomenon has been the court’s declaration that it has
jurisdiction to award compensation.
State liability in India is simply understood by Article 300(1) of the Constitution which
originally came through Section 176 of the Government of India Act, 1935. This could be
traced all the way back to Section 32 of the Indian Government Act, 1915, the origin of
which can be observed in Section 65 of the Indian Government Act, 1858. Therefore it will
be seen that by the chain of legislation starting with the Act of 1858, each State’s
Government of India and Constitution are in accordance with the East India Company’s
succession. In other words, the Government’s responsibility is the same as before1858, the
East India Company.
Conclusion
After considering all the above heads, it is very important to understand that whether an act
of state is immune from prosecution or not, it depends on the facts of the case and the
judiciary plays a very important role in the same. The court is the authority which would
analyse the case and determine the liability of the right party. Sovereign immunity as a
defence was never available where the State was involved in a commercial or private
undertaking nor it is available where its officers are guilty of interfering with life and liberty
of a citizen not warranted by law. In both such infringements, the State is vicariously liable
and bound, constitutionally, legally and morally, to compensate and indemnify the wronged
person. The doctrine of sovereign immunity has no relevance in the present-day context when
the concept of sovereignty itself has undergone a drastic change.
2. Critically examine the Personal Capacity of a Husband, Wife, and Corporation
under the Law of Torts to sue and be sued. Elaborate your answer with apt judicial
pronouncements. x 2
In the past, the only individual who could file a lawsuit seeking judicial redress was someone
who had specifically been harmed legally as a result of real or threatened infringement of a
right or interest that was protected by the law. This norm, nevertheless, is very old and came
into existence when private law predominated the legal system and public law had not yet
been created.
Everybody has a right to sue and is subject to being sued, according to the basic rule of tort
law. However, this rule is not ironclad. There are exceptions to this basic norm due to
individual disability depending on specific laws and situations. There are some people who
cannot bring or receive a tort claim.
Who Can Sue and Who Cannot Sue?
The below points provides us with a clear understanding of as to who can sue and who cannot
sue in tort:
Convicts and persons in custody:
For several offences covered by sections 126, 127, and 169 of the Indian Penal Code of 1860,
confiscation of property was a sanction in India up until 1921. However, this punishment has
since been eliminated. In India, a convict may therefore bring a tort claim for injuries to his
person or property, as per existing law.
The right to life and liberty, as well as the freedoms of speech and expression, are guaranteed
under the Indian Constitution. In the case of Sunil Batra vs. Delhi Administration[1] the court
determined that a person's conviction does not place an iron barrier between him and his
rights, nor does it make him a non-person.
In Smt. Kewal Pati v. State of UP[2], due to the jail officials inability to protect him, one
prisoner was attacked by another prisoner within the facility and died. The Supreme Court
granted Rs. 1,000,000 as compensation against the State for violating the basic right to life
guaranteed by Article 21 in a case filed under Article 32 of the constitution by the deceased's
relatives.
Alien Enemy:
Any individual, regardless of nationality, who resides in enemy territory or does business
there is considered an alien enemy. An alien enemy cannot bring a claim on his own behalf.
An alien enemy cannot file a lawsuit in an English court without the Crown's specific
permission in England. In the case of Johnstone v. Pedler[3], (1921) 2 AC 262 it was decided
that an alien adversary who entered the realm with the express or implicit permission of the
Crown was momentarily released from his enemy status and might exercise judicial
jurisdiction. In the words of Salmond, English courts are open to an alien enemy but he
remains at the mercy of the Crown.[4]
[5]In India as per Section 83, Civil Procedure Code, 1908, Aliens who are living in India with
the Central Government's permission may file a lawsuit in any court that is otherwise
qualified to hear the case, just like they would if they were Indian citizens.
However, aliens who are living in India without the Central Government's permission or who
are living abroad may not file a lawsuit in any such court. Additionally, every individual who
resides in a foreign nation whose government is at war with India and does business there
without a licence issued in that capacity by the Central Government is considered an alien
enemy resident abroad.
Married woman and husband
A married woman could not file a claim in England before to 1882 unless her husband also
joined the lawsuit as a plaintiff. Additionally, unless her husband was included as a
defendant, she could not be prosecuted for a tort that she had committed. Due to the rule that
husband and wife constitute one person in legal terms, neither she nor her husband may file a
lawsuit against the other for any tort committed by one against the other.
The Married Women's Property Act of 1882 and the Law Reform (Married Women and
Tortfeasors) Act of 1935 both eliminated these anomalies. [6]A married woman can sue as if
she is femme sole for any tort committed by a third person and can also be sued for any tort
committed by her without joining her husband who cannot be made liable or made party to a
suit simply because he is the husband.
Additionally, each spouse in a marriage has the same right to file a tort claim against the
other as if they were not married under the Law Reform (Husband and Wife) Act of 1962. To
prohibit the parties from utilising the court as a forum for insignificant domestic issues that
have no potential of materially benefiting either of them, the court may choose to halt the
proceedings.
Due to the Married Women's Property Act of 1874, such a woman can be sued and sued as a
femme sole in India and any damages that may be obtained against her are payable out of her
separate property. Hindus, Buddhists, Sikhs, Jains, and Muslims in India, however, are
subject to personal laws rather than common law, which governs their marital status.
Marriage does not offer any protection to any of the spouses for any torts committed by one
against the other under these personal laws, nor does it change the ability of the parties to
bring or receive a lawsuit.
Bankrupt or insolvent
If an insolvent commits a tort, his culpability is not a debt that can be proven against him in
bankruptcy and is not released in bankruptcy. An insolvent may be sued for a crime he
committed before or after declaring bankruptcy, and if found guilty, the money awarded will
be considered a debt that may be proved in bankruptcy. However, a bankrupt or insolvent
person cannot bring a claim for damages relating to their property since, under English law,
all of their assets belong to the trustee in a bankruptcy, whereas in Indian law, they belong to
the official assignee or official receiver.
Corporation
Due to the nature of corporations, it is obvious that they cannot suffer human injuries.
However, corporations may bring claims for torts that cause damage to their property.
The prerequisite is:
The tort must not be impossible in some way.
If the company can demonstrate that the defamation has the potential to result in actual
damages, it may file a lawsuit against the other party.
A corporation may file a lawsuit for libel or any other tort that negatively impacts its assets or
operations.
In the case of Mayor of Manchester v. Williams,[7] the plaintiff corporation's lawsuit for
damages regarding a statement alleging corrupt activities in the management of municipal
affairs was dismissed since it was determined that the statement did not harm the corporation
as a whole.
Foreign Sovereign
The jurisdiction of Indian courts does not extend to the heads of any nation. Every sovereign
is exempt from the jurisdiction of every Court according to the fundamental element that to
do so would violate his genuine dignity, which is his total independence from all higher
authority. According to Section 86 of the Code of Civil Procedure from 1908, no ruler of a
sovereign State may be sued in any court that is otherwise authorised to hear the matter,
unless that ruler's government has provided its written agreement, which must be verified by
a secretary of that government. [i]The Supreme court of India in 1966 applied this section to
all foreign states whatever may be the form of government in the case of Mirza Ali Akbar.
Minor
In India as per sections 10 and 11 of the Indian Contract Act, 1872 a minor is incompetent to
contract. [8]In Mohori Bibee vs. Dhurmodas Ghose, it was held that a minor's agreement
being void ab initio; no action can be brought under the law of contract against him.
Sections 82 and 83 of the Indian Penal Code of 1860 prohibit age-based distinctions in tort
cases. Therefore, a seven-year-old child might be sued for trespass in the same way as an
adult.
However, until sufficient maturity for committing that tort can be shown in this specific case,
a child cannot be held liable for a tort that requires a distinguishing mental element, such as
dishonesty or malicious prosecution.
Minor
In India a person of 18 years or above becomes major, but, if a guardian is appointed before
that age or a property is taken under superintendence by the court then the age of majority is
raised to 21. Under common law, age of majority was reduced to 18 from 21 after the
introduction of Family Law Reform Act, 1969.
1. Capacity to be sued
1.1 Age Factor
There is no minimum age for the existence of tortuous liability . A minor, can be very well
sued like an adult, if the action committed by him is in contrast with the reasonable action
expected from the child of that age in a particular situation.
In Gorely v. Codd [1967] 1 W.L.R. 19 , Nield J. held a boy of age more than 16 years for
shooting the claimant with an air rifle in the course of larking about.
In the foregoing case of Tillander v. Gosselin (1966) 60 D.L.R. (2d) 18 the High Court of
Ontario, Canada, established that a minor can be sued if he is old enough to form an intention
to do the necessary act . Similarly in negligence, where intention is not the pre-requisite, the
court in Mullin v. Richards established that a 15 year old school girl was not negligent when
she injured a school friend while fencing with a plastic ruler. Therefore a minor is negligently
liable if he failed to show the amount of care reasonably to be expected from a child of that
age.
As per notion, a minor is not worth suing because of his incapability to reimburse damages.
But, if the affluent society is considered and when we see that a judgement debtor now
without funds may acquire them (damages) later, and that he may be sued on the judgment, or
execution may be issued on it, up to six years from its date, or even after that period with the
leave of the court , the notion appears untrue.
Tort and Contract
A minor is liable in tort as an adult but the tort must be independent of the contract. A minor’s
agreement is void even if he fraudulently represents himself to be of full age as established
in Sadik Ali Khan v. Jaikishore. Similarly, in R. Leslie Ltd v. Shiell [1914] 3 K.B. 607 at 620 a
minor was immune to any contractual charges or reimbursement inspite of availing loan facilities
by fraudulently projecting himself of full age. In the same case it was established that it is
possible to compel a minor for specific restitution if he fraudulently acquired some property and is
still in control and possession of that property.
Though, now, the common law court has discretion to order the transfer back of the property
acquired even without fraud, if still in possession, under section 3(1) of the Minors’ Contracts Act
1987. In case of a bail, contract with minor is not necessary for restoration of the goods on the
determination of the bailment.
en ventre sa mere
It is interesting to notice that a child who is born ‘alive’ can bring an action for the disability/injury
suffered in his mother’s womb by some wrongful act of the tortfeasor. The Roman maxim
‘Nasciturus pro iam nato habetur’ though was held right by the English law earlier but the image
remained blurred. Then, on the recommendation of the Law Commission the British Parliament
passed ‘Congenital Disability (Civil Liability) Act’ (CDA) in 1976, whereby, an action for the injury
to unborn child has been permitted in certain cases. This act was referred to by the Supreme
Court of India in Union Carbide Corporation v. Union of India , in which it held that those children
who congenitally suffered injury due to toxic effects of Bhopal Gas Tragedy are entitled to be
compensated. This decision certainly surfaced the broader dimension of this English Act by
treating whole of the corporation as a unit.
The nature of duty in these cases is derivative i.e. court should come to a decision after wary
examination of the facts that whether a person is really liable. Different cases have different
background and they should be dealt as per their facts. Few exceptions are answered by the Act
but some are sill speculative. For instance, a child may sue manufacturer for damages if he
suffered injury due to some drug intake by his mother even if it doesn’t affect the mother but
contravenes the law under Consumer Protection Act. On the flip side child’s damages are
reduced when the parents shared the responsibility for the child being born disabled. Further, a
child can even sue his mother if he suffered pre-natal harm when his mother was pregnant and
driving the motor vehicle negligently. It is not clear whether she should have knowledge of
pregnancy. Otherwise general rule is that a mother is immune to such liabilities. But, immunity is
not extended to father. He can be very well held liable if he assaults his pregnant wife and that
act renders to unborn child, any harm.
Concept of ‘Wrongful life’ refers to a condition when a child’s disability is negligently not
diagnosed pre-conceptually and he is born disabled. It is debatable whether defective or
negligent selection of embryo or gamete in modern times would lead to the liability. It is
distinguished from ‘Wrongful birth’ because in this parents claim for damages to themselves
resulting from the child’s birth. Common Law does not permit any action for wrongful life as
decided in McKay v. Essex Area Health Authority [1982] Q.B. 1166, by the Court of Appeal.
Thus, in the light of above, doctrine of en ventre sa mere appears a justified tool of dispensing
justice to the victim i.e. the child unborn. It is fair enough to compensate that child who was the
most innocent party possible and suffered abnormality due to the wrongful act of the offender.
Who Cannot be Sued?
Sovereign or King: The maxim "The King can do no wrong" serves as the foundation for the
crown's exemption from legal accountability. Therefore, a claim of personal injury will not be
brought against the Crown. While altering the previous legislation, "the Crown Proceedings
Act, 1947" also upheld the prohibition on tort claims being made against the government in
the course of private action.
Our nation does not have a king. The Indian Constitution states that neither the President nor
the Governors are subject to judicial review to execute and carry out the authority and
responsibilities of their office, for any act they committed or pretended to commit while using
and carrying out their duty and authority. No ruler of a former Indian State may be sued in a
court without the government of India's consent, according to Section 87-B of the Civil
Procedure Code.
State: Courts cannot challenge an act carried out in the exercise of sovereign authority in
reference to another State or its citizens. Acts of State are those that authorities of one State
perform in the name of the citizens of another State. Among the key characteristics of a State
act are:
The state's representative does the action.
Other States or its Subject are harmed by the act, and
Such actions are either carried out with previous State approval or approval that comes later.
Such actions are not subject to liability. However, if a foreign person is hurt while exercising
sovereign power, he can seek redress through diplomatic channels.
An act of the State is as expressed by the court in [1]S. Hardial Singh vs. State of Pepsu the
act of an executive as a matter of policy performed in the course of its relations with another
State including its relations with the subjects of that State unless they are temporarily within
the allegiance of the Crown.
Ambassadors
In India, the Ambassador is also covered under Section 86 of the Code of Civil Procedure. An
ambassador or diplomatic envoy has certain advantages because he works as a cog in the
system that keeps the two countries' ties in good standing. As a result, diplomatic agents are
completely exempt from the receiving state's criminal law as well as its civil and
administrative laws. If they are not nationals of the host country, members of the diplomat's
family who live with them are also protected by this protection. This immunity applies not
only to the diplomats themselves but also to their suite and household.
One can remove an ambassador by petitioning their own government to persuade the
government of the host nation to punish the envoy and his staff in a way that would appease
the complaining government.
3. Mr X, who had a severe mental illness, drove his car into Mr. Y’s house. Because
of his illness, Mr X mistook the house for his garage. My Y’s house has suffered
extensive damages and also a lot of his expensive artefacts have been badly
damaged. Mr Y sues Mr. X seeking damages for the cost of repairing the house
and the damaged artefacts. Will Mr. Y succeed in claiming the damages? What
defences can be put up by Mr. X. Discuss the relevant principles along with the
recent cases.
4. Prenatal injury
Evolution of pre-natal torts
The principle of protecting the interests of an unborn child has been recognised by the Common Law
for a long time now. The issue with respect to pre-natal injuries and the infant’s right to recover damages
for the injuries suffered was first dealt by the American judiciary in the case of Dietrich v. Inhabitants
of Northampton. However, with this case arose a discrepancy in the law as on one hand, the law allowed
an unborn child to enforce its rights pertaining to property, on the other hand, the law did not provide
any remedy to the child for suffering pre-natal injuries while in its mother’s womb. In this case, a four
to five months pregnant woman fell and got injured while walking on a defective highway under the
management of the defendant. As a result of the fall, she suffered a miscarriage and the premature child
could only survive for ten to fifteen minutes. Subsequently, an action for wrongful death was contended
on behalf of the deceased child. Justice Holmes, in this case, argued that an unborn child does not have
locus standi in the court and is a part of the mother at the time of infliction of injury which resulted in
its death. The case was dismissed on the ground that no civil duty could be owed to an individual not
yet in being. This decision remained uncontested in the American Jurisdiction for the following several
years.
In another case, in 1891, the effect of the rule established in the Dietrich case was greatly augmented.
Here, a pregnant woman while travelling in the railways was injured due to the negligence of the driver.
As a consequence, the baby born harboured permanent injuries as a suit was filed against the driver.
The court in this case explored the status of an unborn child through several cases and commentaries in
common law. Even though the court acknowledged that the privileges to an unborn child resonates with
that of other persons, it concluded that the defendant only owes a duty of care to the mother and not to
the unborn child. One can easily surmise that the court was not willing to explore an uncharted territory
and merely reinforced and preserved the rule in Dietrich case by reiterating the non-existence of an
unborn child as a person.
Next, one of the most landmark cases dealing with the concept of prenatal injuries and deprived Dietrich
was Allaire v. St. Luke’s Hospital. In this celebrated case, a pregnant woman had sustained injuries due
to the faulty and negligent operations of the defendant’s hospital and as a result, the child was born with
permanent physical injuries. Consequently, a suit was filed on behalf of the child. The court echoed the
principle established in Dietrich that an unborn child is part of her mother and is only severed from her
at birth. It noted that there did not exist any authority supporting the existence of a legal duty to an
unborn child.
However, the dissent of Justice Carroll C. Boggs in this case was considered to be the first and the one
of the strongest oppositions to the principle of no liability for pre-natal injuries. The dissent in no way
contradicted Justice Holmes’ in Dietrich case but merely reasoned that no duty of care could be owed
to the infant as the foetus was unable to survive premature death. He differentiated Allaire case from
the Dietrich case on the basis of the concept of viability i.e. the period of intrauterine development when
an infant is able to live outside its mother’s womb and argued that the foetus in Allaire case had a
separate identity and was thus owed a duty from the moment it became viable. Thus, he held that a child
who is born alive should have a right of action for the prenatal injuries that it sustained while being a
viable foetus. He also laid the base that the law should exist with the medical advances side by side and
questioned the common law which would hold a person accountable for the death of the unborn but
would not absolve the person from any liability if the child survived the injury. Although the dissent
was considered to be of prime importance, it failed to convince the jurisdictions to allow a cause of
action for pre-natal injuries.
In the case of Montreal tramways v. Leville, although the Canadian Supreme Court decided the case
chiefly on the basis of the civil law of Quebec, it also observed the prevalent position of common law
and signalled out the legal frailty of Justice Holmes position. It was held in this case that a child having
no right of action for pre-natal injuries amounts to an injury without a remedy. It also pointed out that
even though the father is permitted to seek compensation for the loss he has sustained and the mother
for what she has put up with, the child is prohibited from seeking compensation for the wrong against
itself. Denying the right of action an infant would imply that he would be suffering for the wrongs
committed by some other person.
The court held that a child, born alive and viable, should be allowed to maintain an action in the Courts
for injuries wrongfully committed upon its person while in the womb of its mother. Despite the
argument put forth by the Canadian Court in 1933, it took the United States more than a decade to
identify the right of an unborn child to sue for pre-natal injuries and change the ruling of Dietrich Case.
The following years after the Allaire decision observed unanimity in denying an unborn child the right
of action for prenatal injuries. However, one of the most remarkable judgements in this area of law
which put an end to the rule evolved in the Dietrich case was Bonbrest v. Kotz.
The court reverberated the dissent of Justice Boggs in the Allaire case and delineated it from the Dietrich
case by stressing the viability of the child in the case at bar. The court pointed out that Holmes, in his
Dietrich opinion, denied that the existence of a right of action of infants before it was able to live
separated from its mother. In this case, the child was viable i.e. it had the ability to live in separation
from its mother’s womb. The court in this case also negated the argument of difficulty of proving the
injury to an unborn child. Thus, the idea that was first put forward in Allaire’s dissent was reinforced
in this case, subsequently influencing every court to revisit and reject the rule established in the Dietrich
case.
Thus, the principle that a viable foetus is not a part of its mother and exists as a separate individual,
capable of life and being owed a duty of care was finally recognised by the common law system in 1946
which overruled the proposition in the Dietrich case. Subsequently, after Bonbrest, a sway of cases
recognised and granted a cause of action to a viable foetus for pre-natal injuries. The courts, without
any restraint, started rejecting the doctrine of nonliability established by the Dietrich decision. Hence,
the rule established in the Dietrich case couldn’t survive the test of time and eventually got replaced
with the Bonbrest rule which held a person responsible for prenatal injuries to an infant. Thus, this is
how the concept of the liability for pre-natal injuries evolved and third person’s duty came into
existence. Thus, affixing liability of a third party enabled the courts to deal with this subject in depth
and also opened the doors for the court to deal with the subject of maternal liability for pre-natal injuries.
Liability of mother in case of pre-natal injury
Mother’s role in causing prenatal injuries
There are various factors which result in the occurrence of pre-natal injuries namely heredity,
environmental factors or combination of both. A foetus receptivity to its mother’s anatomic and
metabolic environment is important for the child to be born healthy. Maternal negligence has been one
of the leading sources of pre-natal injuries in children. The most common situation that arises out of
maternal negligence in which the mother is held absolutely liable for a pre-natal injury is physical
accidents ranging from household negligence to negligence while driving a vehicle. Although the womb
provides safety to the foetus, any direct physical contact which has severe effect on the mother’s womb
may seriously affect the unborn infant and therefore it is the duty of a pregnant woman to refrain from
any such activity that results in killing or injuring the foetus by consciously choosing her actions so that
they do not incur any risk on the unborn child.
One of the most important and influential environmental factors in the span of foetal life is nutrition. A
maternal diet that lacks essential nutrients is severely harmful to the unborn child as the development
of foetus is dependent upon proper protein, mineral, vitamin, and caloric consumption. Substandard
nutrition during pregnancy, particularly a protein-deficient diet, most commonly impairs brain
development. Thus, in order to ensure that the foetus doesn’t have any pre-natal deformities and there
is proper growth and development of the baby, it is the duty of the mother to take food enriched with
essential nutrients.
Next, it is imperative to note the effect of drug abuse and alcohol consumption by the mother on the
unborn child. There exists a strong nexus between the voluntary ingestion of drugs during pregnancy
and congenital malformations. Any form of drugs including prescription, non-prescription, illegal drugs
harm the foetus and lead to grave malformations. Sedatives, tranquilizers, heroin, and morphine also
have a huge impact on an infant’s mental and physical health. Children who are born to Women
consuming heroin and other drugs suffer from chronic restlessness, tremors and convulsions. Sudden
withdrawal from drugs by the mother during pregnancy results in the inability of the child to cope with
addiction resulting in the child suffering from intense and extreme distress.
Likewise, a mother’s excessive consumption of alcohol during pregnancy may result in Foetal Alcohol
Syndrome where a child develops congenital malformations and affects an infant’s weight, ultimately
leading to pre-natal growth retardation. Cigarette smoking also has a terrible impact on the health of an
unborn child as it results in reduction in oxygen circulation in the body which further leads to a decrease
in oxygen supply flowing to the foetus. This deprivation of oxygen leads to impairment in the foetal
growth which results in low birth weight babies.
Hence, it is evident from the above discussion that the actions of a mother has direct impact on the
unborn child and therefore it is the duty of the mother to not act negligently and take proper care so as
to protect the life of the unborn child as the actions of the mother not only has an effect on her body but
also has an adverse effect on the body of the child inside her.
The doctrine of parental immunity and its abrogation
The doctrine of parental immunity in tort is an outcome of Judicial pronouncements and is outlined to
preserve family harmony, parental authority and prevent fraudulent claims. The doctrine of parent-child
tort immunity was simply a rule that actions between parents and their minor children would not be
allowed for personal injuries, whether sustained from intentional actions or negligence. There did not
exist any provision barring a cause of tortious action by a child against his/her parents prior to this. This
doctrine safeguards a parent from a tortious action by a constrained minor and may also be taken as a
defence by the parents or the mother against the child’s claim for pre-natal torts. Initially, this doctrine
provided a complete shield to the parents against a child’s suit and finds its roots in three cases popularly
known as the “Great Trilogy.”
The first case in this regard is Hewlett v. George, where Hewlett, the minor daughter instituted a civil
suit against her mother for wrongly confining her in a demented asylum. The court observed the facts
and stated that since the daughter was married, the parent-child relationship had dissolved, allowing the
plaintiff to maintain an action against the parent. The court stressed upon the traditional obligations of
parents and their children and found that certain reciprocal duties existed between the two such as
parent’s duty to ‘take care’ and ‘guide’ the child and the child’s duty to ‘aid’ and ‘obey’ the parent
prevents the maintenance of such an action, prevent the maintenance of such an action. Lastly, the court
pronounced that a child cannot maintain a civil suit against its parent. Thus, one can easily infer that
the court’s intention, in this case, was to maintain a stable, family-oriented society.
The ruling of Hewlett court was dilated in the successive two cases. In McKelvey v. McKelvey, a suit
was filed by a minor child against her parents for inhuman treatment and cruelty. The court, giving
much attention to policy justifications and the importance of family harmony dismissed the suit.
Analogizing a parent-child relationship with that of a husband and wife, it contended that the just as
there is a unity between husband and wife by virtue of their marriage and can only sue each other after
this relationship breaks, similarly, there exists a bond between a parent and a child and a child can bring
a suit against its parents only after the family relationship has ended.
The final case of the trilogy i.e. In Roller ex rel Million v Roller is a paradigm of the inequitable
consequences as a result of adherence to the doctrine of parental immunity. Here, a fifteen-year-old girl
who was raped by her father filed a suit in the Supreme Court of Washington. The court, however,
dismissed the suit stating that there did not exist any cause of action for civil damages against the father.
In this case, not only did the court deny the claim of the minor child on the grounds of public policy
with reference to Hewlett’s decision, but it also took note of two other explanations pertaining to the
doctrine of parental immunity. First, the court recognised the financial welfare of the other minor as
well as dependent members of the family. It feared that allowing action by a child to recover damages
from its parents may infringe upon the rights of the other minor children to enjoy the potential share of
parent’s wealth. Second, the court argued that even if it were to allow a minor to recover the damages
from the parents the, in cases where the child dies, the parents who are the legal heirs but also the
culprits might receive the judgement back. For several years after these three cases, the civil courts
followed this doctrine and denied a minor the right to recover from its parents.
However, the justifications and arguments put forth to avert recovery by a child from its parents seems
archaic in today’s time. The society has evolved tremendously leading to a change in the needs of the
community as well as structure of the family. Therefore, it becomes imperative to review the basic
notion of justice and understand the advancements made in various fields like transportation and
communication, science etc. in the recent years, various jurisdictions all over the world have traced the
fallacies and inequities of the doctrine of parental immunity. Much of this judicial distaste has arisen
because the doctrine can be employed as an umbrella rule that prevents recovery to an entire class on
the sole ground that they are minors, and any suit by them against their parents would dissolve family
harmony. Modem courts have questioned the early rationale that preservation of family harmony and
domestic relations requires that a child be denied recovery for injuries caused by a parent.
It was in 1963, in the landmark case of Goller v. White, Wisconsin Supreme Court for the first time
abolished the doctrine of total parental immunity. However, it maintained immunity in two areas a)
where the alleged negligent act involves exercise of parental authority over the child and b) where the
alleged negligent act involves exercise of parental discretion in providing food, shelter etc.
In another case, it was explicitly stated that the correct approach to address the modern conditions and
conceptions of public policy is the repudiation of parental immunity. The court further held that just
like other people, a child also enjoys the same right to protection and legal redressal against wrongs
committed to itself and this right should not be abolished or rescinded at any cost except strongest
reasons, grounded in public policy, justify the limitation.
However, this doctrine has been rejected by many modern courts as it completely restricts the minor’s
cause of action. This doctrine leads to denial of a child’s right to seek a tort remedy against his/her
parents for the pre-natal injuries caused due to the negligence of the parents. Therefore, the abrogation
of parental tort immunity combined with the recognition of a child’s right to recover for prenatal injury
creates the very real possibility that a mother could be held liable for her negligent conduct during
pregnancy. This doctrine has been directed to safeguard the family relations and puts it on a higher
pedestal as compared to the rights of the unborn child.
India
Although there doesn’t exist any statute dealing with pre-natal injuries in India, India courts have
recognised the legal status of an unborn child in the womb. It was held in Union Carbide Corporation
v. Union of India, that if an unborn child is able to show that he suffered prenatal injuries due to the
leak of gas in the Bhopal gas tragedy, he/she will be entitled to seek compensation from the defendant.
However, In the pre-Independence era,, British established courts in India which followed the common
law and the statutes of England. In India, the tort law has been derived from English common law and
has been continued in India by Article 372 of the Indian Constitution, 1950. The law of torts has been
elaborated in a substantial manner in various big nations namely USA, Canada and Australia who have
dealt with numerous cases in this field since early times. The findings and evolution in these countries
has a great influence on decisions in India. Thus, with regard to fixing the liability of mother in prenatal
cases in case of negligence, three options are available with the Indian courts. First, holding the mother
absolutely liable for negligence in all cases. Second, fixing the liability of a mother at a standard lower
than that of a third person. Third, holding the mother liable for negligence in motor vehicle accidents.
However, it is imperative to note that the Motor vehicles Act, 1988 of India makes it mandatory for the
owner to undertake third party liability which has been limited by the judicial opinion to the person
outside the vehicle. Consequently, neither the person driving nor the sitting in the car can claim
insurance coverage. Due to Motor Vehicles Act, 1988 and the insurance regime one can certainly say
that motor accident cases are totally cordoned off from the general tort law. Thus, the Indian courts are
left with two options, either holding mother absolutely liable or fixing a reasonable standard of care.
The law of prenatal injuries has undergone drastic change during the last century. Nevertheless, a
majority of jurisdictions now permit children to recover for injuries suffered while in utero.
Furthermore, rapid elimination and abrogation of the parent-child tort immunity doctrine is providing
children with an opportunity to take a stand against their parents. To establish a child’s right of recovery
for injuries sustained as a result of maternal misconduct, the law must narrowly define the parameters
of such action. Courts should dismiss the viability distinction as an important threshold for determining
the cases pertaining to prenatal injuries. Notwithstanding elimination of the viability rule, however, the
maternal duty of care owed to an unborn child must not be so diverse as to hold the mother liable for
remote omissions. Furthermore, courts should impose such a duty on pregnant women only when the
women had knowledge or should have had the knowledge about the impending pregnancy. With these
limitations instituted, however, there is a strong case to protect the rights of a child who is born alive
but defective, as a result of the maternal negligence occurring during the period of foetal development.
It is also important to consider that while determining the liability of a mother in prenatal injuries, the
courts must not equate the liability of a mother to that of a third party. Therefore, in India, whenever
such issues come up, the courts should adopt the approach of finding the fine balance between the extent
of maternal duties and need for protecting the rights of the unborn child.
5. State of raj v vidyavati and kasturilal judgement. Discuss rationale x 2
Facts of the case
Lokumal i.e. Defendant no. 1, a temporary employee of the State of Rajasthan was employed as a
motor driver (on probation) of a government jeep car under the Collector of Udaipur. The car had
been sent for repairs. On February 11, 1952, while driving the car back from the workshop after the
repairs were done, defendant no. 1 knocked down one Jagdishlal, who was walking on the footpath by
the side of the public road. Jagdishlal was severely injured and his skull and backbone were fractured.
Three days later, he died in the hospital. The Plaintiffs, i.e., widow of Jagdishlal and his daughter aged
3 years, through her mother as next friend filed a suit for damages for tort against Lokumal and the
State of Rajasthan (Defendant no. 2) claiming compensation of Rs. 25,000 from both defendants.
Defendant No. 1 remained ex-parte and the suit was contested by Defendant No. 2 on various issues.
Decision of the Trial Court
The Trial Court decreed the suit of the plaintiff as against Defendant No. 1 but dismissed the suit
against Defendant No. 2. The Court held that the fact that the car was maintained for the use of a
collector for discharging his official duties is sufficient to exclude the case from the category of cases
wherein the vicarious liability of the employer could be made out. The Trial Court held that
Defendant No. 1 was rash and negligent in driving the car that caused the accident which ultimately
led to the death of the deceased.
Decision of the High Court
The plaintiff, aggrieved by the order of the Trial Court, filed an appeal to the Rajasthan High Court.
The High Court decreed the suit of the plaintiff as against the second defendant also. The Court
ordered Defendant no. 2, i.e., the State of Rajasthan to pay compensation of Rs. 15,000 to the
plaintiff.
It was held that “the State is in no better position in so far as it supplies cars and keeps drivers for its
civil service. It may be clarified that we are not here considering the case of drivers employed by the
State for driving vehicles which are utilised for military or public service.”
Thereafter, the State of Rajasthan filed an appeal to the Hon’ble Supreme Court after obtaining a
certificate under Article 133 of the Constitution of India from the High Court certifying that the case
involved a question of general public importance.
Issues

Whether the State of Rajasthan is vicariously liable for the tortious act committed by its
servant?

Whether the driving of the jeep car from the workshop back to the Collector’s place can
be regarded as being done in exercise of sovereign function/power of the State?
Contentions of the parties
Submissions made by the Defendant-appellants

It was argued on the behalf of defendant-appellants that the question of liability of the
State has to be determined in terms of Article 300(1) of the Constitution. It was submitted
that the State of Rajasthan could not be held liable under Article 300 of the Constitution of
India as the liability of the corresponding Indian State would not have been made out if
the case had arisen prior to the commencement of the Constitution.

It was argued that in order to succeed in his case and prove the liability on the part of the
State of Rajasthan, the respondent-plaintiff must prove that the State of Udaipur i.e.
corresponding state would have been liable if the case had arisen before the enactment of
the Constitution.

It was also submitted that the jeep car was being maintained in the exercise of sovereign
functions and not as a part of any commercial activity of the State.
Submissions made by the Plaintiff-respondents

It was submitted on the behalf of plaintiff-respondent that Chapter III of Part XII of the
Constitution of India, namely “Property, Contracts, Rights, Obligations and Suits”
contains other articles i.e. Article 294 and 295 which deal with rights and liabilities,
whereas Article 300 merely addresses the question that in whose name the suit may be
filed. Article 300 does not deal with the extent of liability of a State and is not relevant in
the case at hand.
Judgment

The Supreme Court said that it is clear from the findings of the courts below that the
tortious act was committed by Defendant no. 2 in circumstances wholly dissociated from
the exercise of sovereign powers.

The Court upheld the decision of the High Court holding Defendant no. 2 liable by laying
down the correct legal position that the State was in no better position than any other
employer in so far as supplying cars and keeping drivers for its civil services was
concerned.

Construction of Article 300(1) of the Constitution
The Court proceeded to construe the true meaning and effect of Article 300(1). The court pointed out
that Article 300 has three parts—
1. The first part provides for the form and cause-title in a suit. It states that a State may sue
or be sued by the name of the State.
2. Secondly, that State may sue or be sued in relation to its affairs in like cases as the
corresponding provinces/Indian State might have sued or been sued had the Constitution
not been enacted.
3. The second part is subject to any provisions made by an Act of the legislature of the
concerned State, in the due exercise of its legislative functions and pursuance of powers
conferred by the Constitution.
The Hon’ble Supreme Court rejected the contention of respondent-plaintiff that Article 300 is wholly
irrelevant for determining the vicarious liability of the State. While acknowledging that Articles 294
and 295 deal with rights to property, assets and liabilities and obligations of the erstwhile Indian
States, the Court however observed that these Articles primarily deal with devolution of these rights
and liabilities and do not define them. These Articles merely provide for the substitution of one
government in place of other.
The Court also held that the second part of Article 300(1) defines the extent of liability by using the
expression “in the like cases” and referred back to the legal position as it existed before the enactment
of the Constitution for deciding such cases.
The Court held that under Article 300 of the Constitution (which related the law on the subject to
1833 Charter Act through Section 10 of the Charter Act, Section 65 of the Government of India Act
1858, Section 32 of the Act of 1915, Section 176 of the Act of 1935), the ratio decidendi of the
Peninsular and Oriental Steam Navigation Co. case (1861) applied. In that case, it was held that “The
Secretary of State-in-Council of India is liable for the damages occasioned by the negligence of
servants in the service of Government if the negligence is such as would render an ordinary employer
liable”.

The Court propounded the following principles on the issue of liability of the State for the
tortious act committed by its servant:
1. It was held that the State should be liable for tort committed by its servant within the
scope of his employment just as any other employer.
2. The Court held that the common law immunity that the ‘king can do no wrong’ does not
exist in India. Moreover, since the time of the East India Company, the Sovereign has
been held liable to be sued in tort and contract and the aforesaid common law immunity
never operated in India.
3. With the enactment of the Constitution of India, we have adopted a republican form of
government and one of the objectives is to establish a socialistic State. As the State is
expected to perform varied industrial and other activities that require the State to employ a
large number of servants, there is no justification whether in principle, or in public
interest, that the State should not be held liable vicariously for the tortious act of its
servant.

The Court observed that in order to judge the liability of the State of Rajasthan under
Article 300(1), it would not be possible to go beyond the last stage of integration leading
to the formation of the Rajasthan Union on the eve of the Constitution and that Union
would be the corresponding State as contemplated by the Article. It was held that the State
of Rajasthan had not been able to show that its predecessor would not have been liable
had the case arisen in the pre-Constitution era.

It was held that in absence of any contrary provision of law, the liability of the Union of
Rajasthan for the acts committed by its servant would be the same as that of the Dominion
of India or any of its constituent provinces.

As neither the Parliament nor the State Legislature has enacted any law exercising their
right under Article 300, the law shall remain the same as it had been since the days of the
East India Company.
Hence, the Supreme Court dismissed the appeal with costs.
Relevant cases mentioned in the judgment

State of Bihar v. Abdul Majid(1954): The Court placed reliance on this judgment for
recognising the right of the government servant to sue the government for recovery of
arrears of salary.

The Peninsular and Oriental Steam Navigation Company v. the Secretary of State for
India (1861): This case was decided by the Supreme Court of Calcutta on receiving a
reference from the Small Cause Court Judge. Brief facts of the case were— One of the
horses drawing the plaintiffs carriage was injured due to the negligence of the
Government employees in carrying a piece of the iron funnel. The plaintiff company
claimed damages against the Secretary of the State. Learned Advocate General appearing
on the behalf of the defendant contended before the Court that the State cannot be held
liable for damages occasioned by the negligence of persons in its employment and that
the State cannot be sued in its own court without its consent. The Court pointed out that in
order to remove these difficulties arising in the way of getting redressal, the liability of the
Secretary of the State in place of that of the East India company was specifically provided.
The Court held the Secretary of State liable for the tortious act of its servant. It also
clarified that the liability of the Secretary of the State was not a personal liability but had
to be satisfied out of the revenues of India.
Analysis & observation
In this case, the Court undertook an in-depth analysis for determining the issue of the liability of the
State for the tortious acts committed by its servants.
Reliance was placed on the case of Peninsular & Oriental Steam Navigation Company, wherein it
was said that a clear distinction has to be maintained between those acts that are done in exercise of
sovereign power or sovereign function and those acts that are done in conduct of undertaking which
might be carried on by private individuals without having to delegate the power to them. Immunity
shall be given only for those acts which are done in the exercise of sovereign power, i.e., the power
that cannot be lawfully exercised except by a sovereign or any private individual to whom the power
has been delegated.
While fixing the liability of the State of Rajasthan, the Court, in this case (the State of Rajasthan v.
Vidhyawati), said that no provision of common law or statutory law has been shown which could
exonerate the State from the liability. Also, with regard to the applicability of the maxim ‘the king can
do no wrong’, the Court said that the rule has become outmoded in the UK itself with the enactment
of the Crown Proceedings Act, 1947. Section 2(1) of the said Act provides for the liability of the
Crown for the torts committed by its servants or agents as if it were a private person.
However, the Court also pointed out that even before the enactment of the aforesaid Act, the rule of
absolute immunity of the sovereign was never applicable in India.
Conclusion
This judgment is the first ever post-constitution decision dealing with the issue of liability of the
government for tortious acts of its employees. The case laid down in clear terms that the driving of the
jeep car by the driver from the workshop to the Collector’s residence was not a part of the sovereign
function of the State. A clear and wise distinction has to be made between the acts done in exercise of
sovereign power and other acts of the State. A modern welfare State undertakes various activities such
as industrial, commercial, public transport etc. for the welfare of the general public. No longer are the
functions of the State confined to the maintenance of law and order. In such circumstances, it
becomes pertinent that the State is not granted absolute immunity in all cases and should be held
liable for the acts of its employees just like an ordinary employer.
Justification
1. As a matter of public policy, the defence of Volenti non fit injuria is generally not
available where an employer is in breach of a statutory duty, although limited
exceptions exist to this. What is the reason for the law and the courts adopting this
approach? Justify your answer with relevant principles and case laws.
2. Explain the maxim Volenti non fit injuria. Discuss, with the help of relevant case
laws, whether only knowledge of danger or risk on the part of plaintiff is sufficient
to invoke this defence.
In the law of torts, if any person commits any wrongful act which causes injury to another
person, he is held liable and has to pay damages or provide some other remedy which the Court
determines, to the victim of such an act.
But in some cases even if a person suffers some loss because of the act of another person, he
cannot claim damages from that person because of the operation of defences of tort. One such
defence available to a defendant is the defence of volenti non fit injuria in which the plaintiff
is not entitled to damages because he consents to the act which has caused injury to him.
What is volenti non-fit injuria?
In the law of torts, there is a duty on every person do acts with reasonable care in order to avoid
any harm which may occur due to their failure of taking such care. For e.g., If a person is
driving his car, he has a duty to drive the car safely and within speed limits so that no accident
occurs which can also harm any other person.
This is the general rule in torts but there are certain exceptions which are allowed in these cases
and these called as defences to tort. Under these defences, a defendant can escape liability and
volenti non-fit injuria is also one such defence which is available for the defendant.
In case a person gives his consent to doing of an act which leads to him getting injured, then
even if an injury is caused by the other person, he cannot claim any damages from that person
because the act was one for which he voluntarily consented. The consent of the plaintiff acts
as a defence and this defence is called volenti non fit injuria which means to a willing person
no injury happens.
Illustration: If A has a bike whose brakes do not work and B knowing about the conditions of
the bike still chooses to sit on it with A driving it and due to the failure of such brakes they
both sustain injuries in an accident, B cannot claim relief from A because he had voluntarily
consented to sit on the bike.
But in the above illustration, if B was not aware of the conditions of brakes and then he
sustained injuries sitting in it, he would not be stopped from claiming damages from A because
here B did not give his consent to accept the risk of getting injured due to failure of the brakes.
Elements of Volenti non-fit injuria
For the application of the defence of volenti non fit injuria there are some essential elements
or conditions which should be present in a case and only when they are fulfilled, this defence
can be taken to prevent liability.
There are 2 essential elements in this defence:
1. The plaintiff has the knowledge of the risk
2. The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.
Thus, whenever the plaintiff is aware of the possibility of harm which is likely to be caused by
an act and when he still accepts to do that act and therefore agrees to suffer the injury, a
defendant is relieved of his liability.
But only having knowledge about the risk is not enough for the application of this defence, It
is known as Scienti non fit injuria, which means that mere knowledge does mean consent to
the risk. Thus having knowledge is only a partial fulfilment of the conditions for the application
of volenti non fit injuria.
Illustration: A goes for bungee jumping and he knows that he might get injured by it but he
still decides to do it and as a result, he suffers injury despite all the necessary care being taken
by the organisers. Here A cannot claim damages from the organisers because he had full
knowledge of the risks and he had voluntarily agreed to suffer that injury by choosing to do
bungee jumping.
In Smith v. Baker & sons, (1891) AC 325, the plaintiff was an employee of the defendant and
the site where he used to work had a crane which carried rocks over their heads. The plaintiff
had also complained to the defendant about it. One day the plaintiff was injured because of
these rocks falling on him and thus he sued the defendant for damages. It was held that the
defendant was liable and had to pay damages to the plaintiff because the plaintiff had consented
to the danger of the job but not to the lack of care.
Burden of proof
In the cases where the defendant is taking the defence of volenti non fit injuria, the burden of
proof is on him to show that the plaintiff had full knowledge of the act and he had consented
to the risk involved in the act and the defendant has to show that the plaintiff was also aware
of the extent of risk which was involved in the act for successfully taking this defence.
Illustration: A has to undergo an operation for his eye infection and the doctor fails to inform
him about the risk of losing his vision due to the operation, as a result, A takes the operation
believing that there is no such risk to his eye. In the operation, if A loses his eyesight, the doctor
will be held liable because A did not have the knowledge about the extent of the risk which
was involved in the operation and therefore, the defence of volenti non-fit injuria cannot be
taken.
Consent of the plaintiff
The consent of the plaintiff is very important in the defence of volenti non fit injuria because
only when he voluntarily gives his consent to an act, the defendant can take this defence.
In the case of Hall v. Brookland (1932) All E.R. Rep 208, the plaintiff went to see a car race
in which two cars collided with each other and as a result of the collision, the plaintiff who was
sitting as an audience was also injured when one of the cars flew into the audience. Here the
defence of volenti non fit injuria was applied because the plaintiff had given his consent to such
a risk by going to the race.
Consent may be Express or Implied
In the cases of this defence, the consent of the defendant is not required to be expressly given
and even by his conduct, his consent can be taken.
Illustration: C is a cricket player and due to a full toss ball he gets hits by it on his shoulder.
Here C cannot claim any damages because C has consented to the risk by agreeing to play
cricket.
Illustration: A goes to watch a cricket match and while watching the match the batsman hits
a six that hurts A’s hands when he attempts to catch it. Here A cannot hold the batsman or the
owner of the Cricket stadium liable because he had impliedly consented to this injury by his
act of purchasing the ticket and sitting in the stadium and thus despite no express consent, the
defence of volenti non fit injuria will apply here and his consent will be deemed to be implied
for such injury.
Consent of the Plaintiff must be free
When a plaintiff gives his consent for an act such consent should be free from any coercion,
fraud or any other such means by which the free consent can be affected.
For e.g., A has a heart problem and he goes to a hospital for surgery. There he is informed by
the surgeons that the required surgery is very complicated and there is a chance of the surgery
failing which can cause his death. If A gives his consent to have the surgery and the surgeon
despite taking all reasonable care in doing the surgery is not able to save A, then the surgeon
cannot be held liable because A had given his consent for it and this consent was given freely.
In case the consent of a person is not free, the defendant cannot claim this defence to escape
liability and he will be held liable for damage caused.
For e.g., A having heart problem goes to a surgeon and he is told that he needs surgery to which
he agrees. During the surgery, the surgeon removes one kidney of A without his knowledge.
In this case, even though the surgery is successful the surgeon will be held liable because A
did not give his consent to the removal of his kidney.
In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And Anr., the plaintiff had a
tumour on her breasts and therefore she went to the hospital to have it removed. While
operating her the doctor also removed the uterus even though it had nothing to do with the
tumour. Thus, the Court held the defendants liable and thus, the defence of volenti non fit
injuria was rejected.
In the case of Padmavati v. Dugganaika, the plaintiffs had asked for a lift in the jeep of the
defendants and while travelling in it one of the screws of the wheel of the jeep fell out, as a
result, the jeep crashed and it caused the death of one of the plaintiffs. In the case, the Court
held that the defence of volenti non fit injuria will apply and thus the defendants were not liable
because by sitting in the jeep the plaintiffs had assumed the risk of being injured in an accident.
Consent by fraud
In cases of consent having been obtained by fraud, the defence of volenti non fit injuria will
not apply and the defendant will be held liable for the wrong by him.
For e.g., in the case of R v. Williams (193) 1 KB 340, the defendant was a singing coach and
he had convinced a 16-year-old student to have sexual intercourse with him by telling her that
it will help her in improving her voice and singing. The defendant was held liable by the Court
because the consent was obtained by fraud.
Consent in cases of intentional infliction of harm
In the cases where harm is caused to a person intentionally, the defence of volenti non fit injuria
will apply if the person has given his consent to such harm.
Illustration: A is a boxer who is fighting B in a boxing match. During the match, B punches
A very hard as a result of which he suffers head injuries. In this case, even though B had
intentionally inflicted harm on B it will not make B liable because A had willingly given his
consent.
Illustration: K is a football player and during a match, he gets injured due to a tackle another
player, as a result of which he needs surgery. Here A cannot claim any damages because by
playing the sport he has impliedly consented to the risk of being injured.
Limitations on the application of volenti non fit injuria
There are certain limitations under which the defence of volenti non fit injuria cannot be taken
by a defendant even if the essentials of this defence are present in the case.
Rescue Cases
When the plaintiff suffers an injury as a result of him doing an act which he knows is likely to
cause harm to him but it is an act to rescue someone, then this defence will not apply and the
defendant will be held liable.
Illustration: A fire is caused due to the negligence of A, and B is trapped inside the fire. C
sees B and jumps into the fire to rescue him but in doing so he is also burned. Here even though
C went into the fire voluntarily, knowing fully well that he may be burned, A will be held liable
for negligence and the defence of volenti non fit injuria cannot be applied in this case, therefore,
C will is entitled to receive damages from A.
In the case of Haynes v. Harwood (1935), 1 KB 146, the servant of the defendant brought two
horses in the town near a police station and left them to do some other work. The horses were
upset by the children and they broke free, seeing them in rage the plaintiff who was a police
officer went to stop the horses and in doing so he got injured and brought a case against the
owner for damages. The court held the defendant liable because the defence of volenti non-fit
injuria did not apply in a rescue case.
Illegal Acts
If the consent is given for an act which is not allowed by law then, even on the fulfilment of all
the essential conditions of this defence, the liability cannot be escaped and thus in such cases,
this defence becomes inoperative.
Illustration: If A and B decide to do a fight with sharp swords, when such an act is prohibited
by law, and A suffers a big cut due to which he suffers serious injuries, then in such case B
cannot take the defence of having A’s consent in doing this act because it was prohibited by
law and thus B will be liable.
Negligence of the defendant
The defence of volenti non fit injuria is not applicable in a case where the defendant has been
negligent. Thus only where there is no negligence by the defendant, he can claim this defence
to escape liability.
Illustration: If A goes undergoes a heart operation and he gives his consent for it even though
he knows that there is a risk of the operation failing which can cause his death, the surgeon will
not be liable if A dies as a result of the surgery if he had taken all due care. But if the operation
had failed because of the negligence in carrying out the surgery then in such a case, the surgeon
cannot claim the defence of having received the consent of A and he will be liable because
there was negligence on his part in conducting the surgery.
In the case of Slater v. Clay Cros Co. Ltd. 1956] 2 QB 264, the plaintiff was hit by a train in
the tunnel of the defendant railway company. The railway company had given instructions to
all the drivers of its trains that they have to blow the whistle at the entrance of the tunnel and
they should also slow the speed of the train but the driver did not follow these instructions and
negligently drove it inside the tunnel, as a result, the plaintiff was injured. The defendant had
taken the defence of volenti non fit injuria but the Court held that this defence could not be
applied because even though the plaintiff took the risk of walking inside the tunnel, this risk
was enhanced by the negligence of the driver. Thus, when a plaintiff gives his consent to take
some risk, there is a presumption that the defendant has not been negligent.
Volenti non fit injuria and Contributory negligence
Both contributory negligence and volenti non fit injuria are used as a defence by the defendant
to escape liability but they differ from each other.
In contributory negligence, the plaintiff who has suffered an injury is also at fault along with
the defendant and therefore the quantum of damages which he can be awarded is reduced in
proportion to the degree of his negligence in the act which caused him injury. Thus, both the
parties are at fault in such a case and therefore this is a partial defence available to the
defendant.
Illustration: A gets hit by a car while crossing a road, which was being driven by B and he
drove it rashly and over speed limit due to which A sustained many injuries. But this accident
happened because A decided to cross the road even though the traffic signal was on and thus
the pedestrians could not cross it until the signal stopped for the vehicles. Here both A and B
are at fault and therefore even though B will be held liable, the damages which he has to provide
will be reduced because A was also at fault and thus the defence of contributory negligence
applies here,
In volenti non fit injuria, the defendant is completely exempted from his liability because of
plaintiff’s consent and thus it is a total defence.
Conclusion
Volenti non fit injuria is one of the defence under the law of torts in which the person who has
committed a wrong is exempted from liability because the victim of such a wrong gives his
consent to the commission of such an act and such a consent must be free for the successful
application of this defence in a case.
This defence is also subject to certain limitations such as rescue cases and the negligence of
the defendant in which even if the consent is given by the plaintiff, the defendant is held liable.
Thus while allowing this defence, Courts have to ensure that the conditions of this defence are
fulfilled and the act is not one which falls within the limitation imposed on this defence.
3. Necessity x 3
If an act is done to prevent greater harm, even though the act was done intentionally, is not
actionable and serves as a good defence.
It should be distinguished with private defence and an inevitable accident.
The following points should be considered:


In necessity, the infliction of harm is upon an innocent whereas in case of private
defence the plaintiff is himself a wrongdoer.
In necessity, the harm is done intentionally whereas in case of an inevitable
accident the harm is caused in spite of making all the efforts to avoid it.
For example, performing an operation of an unconscious patient just to save his life is
justified.
In Leigh v. Gladstone[37], it was held that the forcible feeding of a person who was hungerstriking in a prison served as a good defence for the tort of battery.
In Cope v. Sharpe[38], the defendant entered the plaintiff’s premises to stop the spread of fire
in the adjoining land where the defendant’s master had the shooting rights. Since the
defendant’s act was to prevent greater harm so he was held not liable for trespass.
In the case of Carter v. Thomas[39], the defendant who entered the plaintiff’s land premises
in good faith to extinguish the fire, at which the fire extinguishing workmen were already
working, was held guilty of the offence of trespass.
In Kirk v. Gregory[40], A’s sister-in-law hid some jewellery after the death of A from the
room where he was lying dead, thinking that to be a more safe place. The jewellery got stolen
from there and a case was filed against A’s sister-in-law for trespass to the jewellery. She was
held liable for trespass as the step she took was unreasonable.
4. Insanity x 2
5. Approach court with clean hands
6. Ex turpi non oritur action x 3
Whenever a person does an unlawful act, the person who suffers loss because of such an act
has the right to claim remedy against him in the court. For e.g., If A assaults B, then B can
claim damages from him in the court.
But in some cases, the plaintiff is not allowed to claim damages from the defendant because he
himself has committed an illegal act and therefore he cannot get any remedy in the court. This
is known as Ex turpi causa non oritur actio, which means that no action can arise from an
illegal act. It is one of the defences which exempts the defendant from his liability because the
plaintiff has also committed an illegal act. Therefore, this is also known as the “plaintiff a
wrongdoer” defence.
Illustration: A and B have decided to commit theft in C’s house but during this act, A gets
injured because of B’s negligence. Here even though B is guilty of negligence A cannot claim
any damages because he suffered this injury as a result of being involved in an unlawful act of
theft and thus it falls in the category of ex turpi causa non oritur actio.
Why this defence is applied?
One of the most glaring points of this defence is that it allows the defendant to escape his
liability even though he is guilty of an unlawful act. Thus it raises a question as to why is this
defence applied or why is the defendant not punished as well for his share of the wrongful act.
This was explained by Lord Mansfield in the case of Holman v. Johnson 1775 1 Cowp
341, where he stated that this defence is applied to prevent the plaintiff from getting any benefit
from an illegal act. Thus this defence is not applied in favour of the defendant but instead, it is
applied to prevent such a plaintiff from taking advantage of the illegal act committed by him.
He also stated that in case the roles of the plaintiff and defendant were reversed and if the
defendant was the plaintiff and the plaintiff became the defendant then also the action brought
by the plaintiff would have failed because of the rule potior est conditio defendentis which
means they where both the parties are equally at fault, the position of the defendant is stronger.
Also, in the case of Walsh v. Trebilcock (1894) 23 S.C.R. 695, the Court has held that ex turpi
causa is a well-founded legal principle and that the Court should not enforce an illegal contract
or any obligation which arises out of an illegal act. Even if the defendant as not pleaded this
defence but from the evidence in the case it is clearly proved that the act of the plaintiff was
illegal then the court cannot allow the suit of the plaintiff to succeed.
Essentials
There are 2 essential elements in the defence of ex turpi causa:
1. The suit is brought by the plaintiff for the damage caused by the defendant and the
defendant is fully responsible for such damage.
2. The actions of the plaintiff have to be in a specific course of action which is illegal.
Thus whenever these 2 conditions are fulfilled in a case the defendant has the right of claiming
the defence of ex turpi causa and the suit brought by the plaintiff will fail.
Illustration: If A is a passenger in a stolen car which he knows is stolen and still freely
participates in it then, if this car crashes and he gets injured, he cannot get damages from the
driver of the car because A was also involved in the criminal act and therefore no action can
arise here by the operation of ex turpi causa non oritur actio.
Tests of ex turpi causa
The defence of ex turpi causa is very complicated so there is no clear legal principle which can
be universally applied by the courts to determine when can this defence be allowed. So, many
tests have been formulated by the Courts which are very helpful in understanding the scope of
this defence and the cases in which it can be allowed.
Test of Reliance
As per this act, whenever the plaintiff has to rely on his illegal act as the basis for his case then
this defence is applied. It simply means that to prove that he has suffered damage because of
the defendant, he has to show the fact that he had committed an illegal act. In such cases, the
Court does not allow the claim of the plaintiff to succeed. Thus if the plaintiff can prove that
there is a cause of action in the case and in proving it he does not need to rely on his illegal act
then, his claim is allowed to succeed.
In Tinsley v. Milligan (1993) 3 WLR 126, the claimant and the defendant were lovers and
they had purchased a property in the name of the claimant so that the defendant could get the
social security benefits and thus it was an act of fraud by which the benefit could be derived.
Later their relationship had broken down and the claimant claimed sole ownership of the
property by claiming that it was registered in his name only while the defendant claimed that
it was held on trust for both of them. The House of Lords by applying the test of reliance held
that the defendant only had to rely on the fact that she had also contributed to the price of the
property and there was an understanding between them it will be owned by both of them,
therefore, the reliance on the illegal act was not necessary. The court also held that the test of
public conscience which was applied by the Court of Appeals was wrong and therefore the test
of reliance was to be applied here.
The Principle of no benefit
As per this principle, a criminal should not be allowed to take any benefit from his criminal act
and therefore the Courts should ensure that such a suit by a person should fail. In the law of
torts, this principle is not very significant because the aim of the law of torts is more about
compensating the loss suffered by the claimant instead of him making any profit or gain.
In the case of Murphy v. Culhane (1977) QB 94, a person named Timothy Murphy had
decided to beat a man called John Culhane with the help of some other people and during the
attack, he was struck by the defendant with a plank which killed him. The widow of Murphy
brought an action against Culhane for the award of damages for herself and her baby. The
defendant had admitted the fact of him causing death but raised the defence of ex turpi causa.
The judge had allowed in favour of the claimant, therefore, the defendant made an appeal in
the Court of appeal where it was held that the claimant could not get any damages because the
deceased himself was involved in an illegal act and therefore no benefit can accrue from it.
Illustration: If A enters into B’s house for theft and B on finding A shoots him with a gun
causing his death. Here even though B has used more than reasonable force but it does not
mean that A’s widow can claim any damages from him because A was also involved in an
illegal act.
The Proportionality Test
According to this test if the injury caused to the plaintiff by the defendant is through an act
which is out of proportions of the illegal act of the plaintiff, then the defence of non oritur actio
will not be allowed.
In Lane v. Holloway (1967) 3 WLR 1003, the claimant was an old gardener who had disputes
with the defendant who ran a cafe which was visited by youths late at night. One day the
claimant shouted abuse at the wife of the defendant and the defendant who was in his bed got
up and went outside. The claimant thought that he was about to be hit therefore he punched the
defendant as a result he retaliated and punched the claimant in the eye which led to him
requiring stitches and surgery. The trial judge held the defendant guilty but reduced the
damages. The claimant, therefore, appealed for greater damages and the defendant claimed that
due to ex turpi causa he cannot be liable. It was held that the punch by the defendant was a
savage blow which was out of proportion of a fist fight and the claimant was also an elderly
person, therefore, there was no ex turpi causa in this case and the appeal of the claimant was
allowed.
Inextricably linked test
In cases where the plaintiff does not rely on the illegal act for his claim but the act is inextricably
linked (very closely connected) with the claim then also the defence of ex turpi causa arises.
This test is related to the reliability test.
For e.g., in the case of Cross v. Kirkby (2000) EWCA Civ 426, the defendant used his land
for the hunt and the claimant was a hunt saboteur whose girlfriend was removed by the
defendant from his land forcibly. As a result,, the claimant got into an altercation with the
defendant and it led to him suffering injuries and he also began to suffer epileptic attacks. So,
the claimant brought the suit for damages. The trial judge had rejected the defendant’s plea of
ex turpi causa and held him liable therefore he appealed to the Court of Appeal. The appeal of
the defendant was allowed by applying the test of inextricable link and it was held that where
the claim of the plaintiff is so closely connected with his criminal act that they cannot be
separated then the court cannot allow the plaintiff to recover any damages.
Public Conscience Test
As per this test, while deciding the case the Court sees whether allowing the plaintiff to recover
damages is in accordance with the public conscience or not. It also considers the question of
whether the awarding of the damages will lead to the encouragement of the crime or not.
In the case of Kirkham v. CC Greater Manchester Police (1990) 2 QB 283, Mr. Kirkham
was an alcoholic who suffered from depression and he also attempted to commit suicide twice
and was thus admitted in the hospital. After being discharged his wife prevented him from
drinking which caused him to become violent thus she called the police and also informed them
about his condition. So it was decided that he should be kept in custody but the police failed to
inform the prison authorities about his condition and he committed suicide. His wife brought a
suit for damages. The defendants contended that volenti non fit injuria and ex turpi causa
applied here but the Court held that in case of unsound person, volenti non fit injuria could
not be applied in him taking his life and by applying the public conscience test the court held
that by awarding the damages in favour of plaintiff, public conscience would not be affected
and thus the defendants were held liable.
This test was criticised in the above mentioned Tinsley v. Milligan case and it was held in that
case that this test was wrong but in the case of Patel v. Mirza (2016) UKSC 42, This test was
applied and was held that it was the correct test for determining the cases regarding ex turpi
causa. In this case, the claimant had given money to the defendant for using insider information
to earn more money which is an offence. The information was wrong and therefore the claimant
filed the suit to recover the amount from the defendant. It was held that the test of reliance
could not be applied and the test of public conscience had to be applied according to which the
claimant should be allowed to recover the amount because it would bring both the parties back
to their original positions and thus by not allowing the recovery, the defendant would be
unjustly enriched which was not in accordance with public interest. Therefore it was held that
the defendant was liable to repay the amount and the validity of the public conscience test was
upheld by the court.
Exceptions

The following are the exceptions to the defence of ex turpi causa. In the cases of
agents and trustees, this defence does not apply where they hold the property for
another person even if the purpose for which the property is to be used is unlawful.
For e.g. If A employs B to commit robbery, A cannot sue B for getting his share of the
proceeds. But if B is an agent of A who is receiving money on his behalf from C then here A
has the right to recover that money from B even though due to the illegality of the act A cannot
recover such an amount from C.

If the illegality is so trivial that the plaintiff does not need to rely on it for his case
and it would be against public policy to deny him to recover the damages, then this
defence is not allowed by the court.
For e.g., in the case of Kedar Nath Motani v. Prahlad Rai & Ors, the predecessor of the plaintiff
had farzi properties in defendant’s name to avoid a higher rate of payment to authorities. After
his death, the defendants claimed ownership over it and stated that because of ex turpi causa
plaintiff could not claim the property. The High Court ruled in defendant’s favour so plaintiff
appealed in the Supreme Court. It was held that the fact of Farzi properties was known by the
authorities so there was no fraud and the plaintiff had no malicious intention against the
defendant. Also, the plaintiff could prove the banami nature of the property without relying on
the fact of illegality, therefore, such a trivial illegality should not stop the plaintiff from
claiming ownership of the property.
Conclusion
Ex turpi causa non oritur actio is one of the defences available to the defendant. This defence
is very complicated as a result of which the Courts had to come up with many different tests in
determining the applicability of this defence. In this defence due to the illegal act of the
plaintiff, he is not allowed to claim any compensation from the defendant. This defence is
provided in pursuance of the principle of public policy, that no person should be allowed to
benefit from his illegal act.
Discharge
1. discharge in torts
The tort is a civil wrong, but all the civil wrong doesn’t come under the ambit of tort. If one
person does any civil wrong to another person, and that wrong comes under the ambit of tort
then the person against whom the wrong has been done is entitled to get remedy in form of
unliquidated damages.
But the law of tort also discusses various methods by which the act of tort gets discharged.
Discharge of Tort
There are seven different modes through which tort is discharged and no remedy will lie for
tort. It is a process through which the tort comes to an end. A wrongdoer is not liable for his
actions.
Following are the methods of discharge of torts.
Death of the parties
Here the maxim ‘actio personalis moritur cum persona’ applies which means if the person
dies his personal right of action dies with him.
Actio personalis moritur cum persona this is the important maxim, it means if the person who
commits a tort or the person against whom the tort is committed dies, the personal right or the
right to receive the damages or the right of action dies with the person.
There are two situations where this maxim applies

Death of the person against whom tort was committed i.e., Petitioner.
when the person against whom the tort was committed i.e. the plaintiff who approached the
court and filed a case died, so his personal right of action dies with him only.
Illustration
If A files a case against the act of tort done by B. If A dies during the course of trial and the
case is still pending before the court. Due to the death of the A, the tort gets discharged, as the
right of action of A dies with him only.
Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to
Petitioner
In India there are laws which constitute the exception to the above maxim like;
The Legal Representative Suits Act, 1885
As per this Act, the legal representative or the executors of any person, after his death can
represent the deceased person in the court of law.
Illustration
If A died during the procedure of trial of court. His legal heir or representative can represent
him in the court of law.
Similarly, in different laws/act like Fatal accident act, the Indian Succession Act, Workmen
Compensation Act etc. the representative of the plaintiff can represent him in the court of law.

Death of the person who commits tort i.e. Defendant
It means the person who commits the act of tort against any other person i.e. the defendant dies,
the tort gets discharged.
Illustration
If Ram commits the act of tort against Geeta, if Geeta files a complaint against Ram, but if
during the course of trial Ram died, then his right of action also dies with him i.e. the discharge
of tort.
In Prusti v. Mohanty
In this case, the defendant received some amount by misrepresentation of fact, but the
defendant died. The High Court of Orissa held that where a money decree was passed against
a person in respect of the amount received by him from the decree-holder by misrepresentation
of the facts, the liability would be personal and could not be extended to his son under the law,
as whatever the relief a decree-holder has against the father ended with the father’s death.
Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to
Defendant.
In India there are various laws which constitute the exception to the above maxim like;
The Legal Representative Suits Act, 1885As per this act, if any person involved in any type of tortious act, died during the course of the
trial. The right of action passes to the legal representative of that person.
Illustration
If A does an act of trespass to the good against B in past. Now if A dies and it is proved that he
was liable for damaging B’s good. So the damages for damaging B’s good has to be paid by
his legal representative.
Similarly, in different laws/act like the Fatal Accident Act, Indian Succession Act, Workmen
Compensation Act etc. The representative of the defendant has to represent him in the court of
law
By Waiver
The second method of discharge of tort is by the waiver. The concept of waiver is when a
person has more that one remedy available to him, as a result, he has to elect one of them. He
cannot apply for both the remedy except in the case of defamation and assault.
Illustration
If A files a case against B that B has committed a tort against A. If A has right to get more than
one remedy he has to choose any one of them, i.e. if he has the remedy in both tort and contract
law, now he has to choose one between them.
The main two principles lying in the doctrine of Waiver are:
1. The person has to choose any one remedy.
2. If the person fails to get the remedy he chooses, the court of law does not allow him
to go back to an alternative remedy.
Illustration
If A files a case against Z and has two remedies for which he can approach the court of law. If
he chooses the first remedy and loses the case. A cannot approach to the court for the alternate
remedy i.e., remedy number 2.
The Waiver can be Implied or Express
In Express waiver, the person expressly communicates about his choice in the court of law.
Illustration
If A file a case and he has the remedy in both, contract as well as Tort. When the court asks
him he has to communicate his choice to the court.
In the Implied form of waiver, the person impliedly communicates about his choice for which
remedy he is applying.
Illustration
If A has two remedies available to him like one under contract and one under Tort. if he applies
for Contract, it becomes clear, he elects the remedy under the contract.
Accord and Satisfaction
Concept of accord means when the parties of the tort i.e. the person who commits the tort and
the person against whom the tort has been committed, come to an agreement and settle the
dispute. Such an agreement is known as Accord. In general term, it means settling the issue by
accepting some consideration in lieu of the right of action.
Satisfaction means the actual payment of consideration agreed by both, the person who
commits a tort and the one against whom the tort committed.
When both the accord and satisfaction once completed, it results in the discharge of tort and
the dispute does not proceed in a court of law.
Illustration
If A dies due to injury caused by B’s car. If A’s family comes to an agreement that B will pay
Rs. 1,50,000 as compensation to them, that’s the situation of Accord. When they received the
actual payment of 1,50,000 Rs. from B, that’s the situation of Satisfaction. So, by settling the
issue and accepting some consideration A’s family lost their right of action and the act of tort
discharged.
The only condition in the concept of Accord and Satisfaction is the consent of the party should
be free and not from fraud, coercion or undue influence.
Illustration
If A, a son of a successful businessman brutally hit one of his servant i.e. trespass to the body
and if A tries to make his servant enter into accord by using some type of undue influence on
him. Due to that influence, the servant gave his consent, this is not considered as free consent
and the accord and satisfaction are not valid.
Release
A Release means giving up the right to the action. It means when a person by his own choice
discharged the tort. This right is only provided to the person against whom the wrong has been
done.
Illustration
Situation 1: A is the person against whom B does any act of Tort and if A, by his free consent
want to release B from the liability, he can do so.
Situation 2: A is the person against whom B and C both commit an act of tort and A by his
choice release B from the liability, this does not mean that C is also released from his liability.
The release should be voluntary and given by free consent from the injured person. If the
consent is taken by coercion, undue influence, or any other unlawful means then that release
should not be counted as a release and the tort is not discharged.
Illustration
If a person is a police inspector, commits an act of tort against another person. By using his
position and by threat, take the consent of the injured person and release himself from the
liability, that release is not a valid release.
Judgement
In this method, the discharge of tort happens by the judgement given by the court. If once the
court gives judgement on the matter, the tort gets discharged, no appeal for the same act of tort
can be claimed for the same remedy in the court of law.
The concept of this method of discharge of tort is based on the legal maxim of Res-Judicata, it
means, if any cause of action decided previously by the court, the same cause of action should
not be entertained by the court twice.
Illustration
If A gets the remedy against B for the accident committed by him previously by the judgement
of the court. Later he found that he needs to go through a further operation. He cannot claim
another remedy for the same again in the court of law.
In Fitter v. Veal, (1701 12 Mod. Rep. 542)
In this case, the plaintiff files a case against the defendant demanding damages against the act
of assault by the defendant and finally he gets the remedy from the defendant as the court of
law allows the remedy to him. Later he discovered that he has to go through a number of
surgeries. He filed another petition against the defendant demanding more remedy against the
act of assault again in the court of law.
The court denied the petition and state that, If once court gives judgement on the matter, no
further appeal for the same act of tort can be filed in the court of law as the tort gets discharged.
Exceptions

If the petition was between the same party but is for different remedy or the action
taken in respect to the violation of another right. Then the petition can be allowed.
In Brunsden v. Humphrey:
In this case, the plaintiff was a cab driver and already received compensation against the
damage to his cab. Later discovered, due to the injury caused in the accident, he got a fracture
in his hand. He has the right to apply for the remedy against the trespass to his body as well.
 If the person who is liable for the act previously does the same act another time.
Illustration
If A commits the tort of trespass against B previously and held liable by the court of law. If he
again commits the same crime against B. If A plea defence that the court cannot punish him
for the same offence twice. The defence is not valid because this case was considered as a fresh
one.
Acquiescence
In this method, the tort gets discharged because of the incapacity of the plaintiff himself i.e. if
he has no time to go to court, no money to pay the court fees, or any other incapacity. When
any person is entitled to enforce his right, and he doesn’t enforce his right for a long time, this
makes other party waived from his liability.
Illustration
if A is entitled to enforce his right against B. If A neglects to enforce his right for a long time,
it automatically waived B from his liability.
2. Under common law, no one can recover damages for the death of another. How
does principle of action personalis moritur cum persona differ. This is also known
as the rule in Baker v. Bolton. Trace the genesis, development and any reforms
that have been brought in by the above principle. X 11
When it comes to law and legal literature, a very short and to-the-point expression that
signifies the fundamental principle of any law or a legal policy is known as a legal maxim.
These legal maxims are pedagogy and often used by the people to make the literature easier
to understand and as precise as possible. The word Maxim has been derived from the Latin
term ‘Maxima’. Usually, these legal maxims we come across are in the Latin language as
most of these maxims originated from different European States during the medieval era.
These states used Latin as their legal language. Various features of the Constitution of
India have been borrowed from countries around the world and majority of those countries
are from Europe. This explains why most of the legal maxims are in Latin language.
These rules/principles are universal and have the same meaning everywhere. Courts all over
the globe are guided by these legal maxims as they help them to understand the applicability
of the laws in a more clear sense. These maxims create a good basis for sound judgment. The
reason behind this is that as these maxims are not authoritative laws and applying these
maxims in cases may be vain, they automatically become a good support system for the
judgments that are produced by the courts. This article talks about the legal maxim “actio
personalis moritur cum persona” and how it has been used in various cases all over the
world.
What does it mean
Actio personalis moritur cum persona in bold and literal terms means ‘a personal right of
action dies with the person’.

Actio stands for ‘an act’ or ‘an action’

Personalis stands for ‘personal’

Moritur stands for ‘death’

Cum stands for ‘with’
Persona stands for ‘person’
In layman’s terms, a personal right and/or cause of action dies with the death of the person.
Earlier, all types of actions which specifically include actions for unliquidated damages, or
we can say actions of torts and contracts are terminated as soon as the person dies. Their
duties, as well as remedies, are terminated upon their death but since the laws of
the Miscellaneous Provisions Act, 1934 were reformed, it has been put out that, “On the
death of any person, all causes of actions vested in him shall survive for the benefit of his
estate. Thus, all causes of actions in torts say for defamation and the claim for damages for
bereavement survived the deceased.”

Thus, we now know that the main rule of this maxim is that all duties and remedies die with
the person but defamation, attacking/ assaulting and personal damages are the three big
exceptions of this legal maxim.
Explanation
To explain the entire concept of the legal maxim actio personalis moritur cum persona, we
need to understand the roots of this principle.

This maxim was quoted and found in the literature of a case that was heard in a
court in the year 1496 in Europe. In this case, a judgment was ruled against a
woman and she was held guilty under the charges of defamation. Before she could
pay the dues for the damage she had done to the tortfeasor, she died.

As per the legal maxim, actions of torts or contracts are destroyed as soon as the
person dies of either an injury or by the injuring party. Even though defamation
was not an exception earlier, it now is a legal cause of action that can be brought
after a person dies if the person is held guilty of defamation, attacking/assaulting,
or personal damages.

Applying the same rule as above, it has also been stated that this maxim can be
applied to actions that are to be done as per the contracts and are purely based on
personal nature. For example, a promise made to someone to marry them. But one
thing to keep in mind is that its application has been narrowed down and its effects
are only limited to the actions that arise out of libel.

Apart from the statutory exceptions mentioned above, there is a provision where
personal representatives of a deceased person have the right to take action if the
personal property of the deceased has been injured during their lifetime. The only
rule here is that the relatives who take an action for the deceased person may
receive compensation only if the deceased was killed negligently or by trespassing.

As per English law, the doctrine of this legal maxim is incorporated and it is not in
any way odd or unusual to the common legal system. The entire concept of this
maxim is based on the primary strata under the universal law. As time passes by,
we have seen the laws change and the main thing to notice is that the judicial
support for the same has gradually been limited and now it is further being
restricted by the legislation. The only rule that is like an umbrella rule for this
maxim which is used by the legislation is that if an injury was caused by the
deceased to another person or the property of someone else, it is only fair that all
the unliquidated damages be compensated to the satisfaction of the sufferer. Even
with this rule, it is only fair to say that the action will die with the person to whom
or by whom the wrong was done.
Illustrations

In a situation where Tithi commits battery on Saumya and if either of the parties
dies during the incident, the right of actions of Saumya arose due to the fact that
Tithi committed the offense of battery on her, Saumya will not get the right to take
any action against Tithi. But if Tithi commits the offense of battery on Saumya
and manages to cause other injuries to her, the right of action that the third person
will get will not be affected at all and the legal maxim “Actio personalis moritur
cum persona” shall be used in this case.

In the month of January, person A agrees and signs a contract to perform a dance
show at the wedding of person B which will take place in the month of July. A was
in an accident in June and could not make it to the wedding. This way, B cannot
execute an action against A or their legal representatives for the breached contract.

Saloni betrays and wrongfully appropriates land from Brijesh. Saloni dies right
after this and that is why Brijesh has the right of action against the legal
representatives of Saloni.
Case law references
Listed below are a few important case laws in which this principle was used:

In the case of Girja Nandini Devi & Ors. v. Bijendra Narain Choudhury (1966),
the court observed and stated that the personal action dies with the person and
when actio personalis moritur cum persona was applied, it was held that this legal
maxim shall have limited application. It was made clear that due to the cast that
this principle operates in a limited class of action ex-delicto which means from a
wrong which includes action for damages against defamation, assault or any other
personal injuries that does not cause the death of any individual that does not
amount to other actions where after the death of the individual, the granted relief
cannot be enjoyed.
The Court also stated, “An action for the account is not an action for damages and it does not
fall among the enumerated classes. Nor is it such that the relief claimed being personnel
could not be enjoyed after death, or granting it would be nugatory.”

The case of Hambly v. Trott (1776) is one of the founding cases for the principle
of the maxim actio personalis moritur cum persona. In this case, the defendant
died after appropriating some farm animals from the plaintiff. The plaintiff then
looked for a way to retrieve those animals from the estate of the deceased but the
plaintiff was not able to do as he wished but at the same time, the Court drew some
rules by which any claim against an estate shall be successful. This was because of
the fact that trespass would fail as it was against the person and not a property
therefore any action for a contract would be successful.

In the case Shri Rameshwar Manjhi v. Management of Sangramgarh Colliery
(1993) which was heard by the Supreme Court, it was held that this maxim has
been under a lot of criticism under the common law as well as in England. This is
due to the fact that it has been categorized as an unjust legal maxim because its
expression is inaccurate and obscure in nature which in the end makes its
application uncertain. The Court also said that this maxim has caused grave
injustice to the people.

In the case of Vatsala Srinivasan v. Shyamala Raghunathan (2016), the Court
stated that in an event where the executor of a will dies, this maxim will not be
applicable to probate the proceedings that shall be initiated by the executor before
their death. In such situations, if an executor fails to comply with his duties, the
beneficiaries of the will or anyone who represents the will are entitled to intervene
and carry on the remaining proceedings that are required to carry on the
proceedings with an official modification prayer in the letters of administration
with the will with the annexed.

In the case of Nurani Jamal & Ors v. Naran Srinivasa Rao & Ors (1993), the
applicability of this maxim in the context of motor vehicle accidents was discussed
in front of the Andhra Pradesh High Court. The single bench judge was confronted
with questions like whether the claims for the damages survive even after the death
or injury during a motor vehicle accident and can the legal representatives take any
action if there happens to be a loss to the property of the deceased. The Court
stated that the actions for damage claiming for personal injuries shall not die with
the deceased person. The maxim shall not be used where there is a loss of
property/estate of the deceased person.

A similar example case law that is related to motor vehicle accidents is Gujarat
State Road Transport Corporation Ahmedabad v. Ramanbhai Prabhatbhai
(1987) where the factor of negligence weighs in. Due to the negligent driving
skills of the petitioner’s driver, a fourteen-year-old boy had to suffer the
consequences and die. The brother of the deceased filed a suit and asked for
compensation in front of the Motor Accidents Claim Tribunal and this case was
later on affirmed and backed up by the Gujarat High Court as well as the
honorable Supreme Court of India. The Courts held that the contention of
compensation that the right of a person to die with the person is not recognized by
the rule of law and that is why the corporation is liable to pay compensation to the
brother of the deceased teen.

In the case of Prabhakara Adiga v. Gowri & Ors (2017), the Court stated that,
“normally, personal action dies with a person but this principle has application to
limited kinds of causes of actions.” The Court also observed that actio personalis
moritur cum persona is a principle that is used as a conjecture that states that the
personal action dies with the person and has a limited application. The Girja
Nandini Devi & Ors. v. Bijendra Narain Choudhury case was cited in this case as
well and that is why the Court also stated that this principle operates in a limited
class of action which includes class for damages, assault and other types of
personal injuries that does not amount to other actions where after the death of the
individual, the granted relief cannot be enjoyed.
Conclusion
To sum it all up, the maxim actio personalis moritur cum persona in literary terms means
that the personal right to an action dies with the person as we have discussed above through
various case laws but many courts have made it clear that due to various factors pointed out
by the courts in the aforementioned case laws, the literal meaning is different from its
application and that is the reason why this maxim is considered unjust and unfair as a whole.
Vicarious Liability
1. Under the principle of Vicarious Liability, the liability of any tort committed by
an employee that falls under the scope of his duties to the employer is transferred
to the employer. This includes both the intentional and unintentional torts.
Critically anlayse tracing the history, the latest developments along with relevant
case laws.
Whenever a person commits an act which is unlawful, that person is held liable for violating
the law and thus he is punished accordingly. For e.g. A enters into the property of B without
his permission, such an act of A amounts to trespass and thus he is liable.
This is the general rule of torts but in some situations a person can be made liable even if he
has not done any wrong, if it is done by some other person with whom he shares a certain
relation, such as master and servant or principal and agent and in these cases his liability is
called vicarious liability.
What is Vicarious Liability?
Vicarious liability means the liability of a person for an act committed by another person and
such liability arises due to the nature of the relation between the two. For e.g. A, is a driver
who works for B and while driving B’s car for taking him to his office, he hits C, a pedestrian
due to his negligence in driving. In such a case even though B was not driving the car he will
still be liable for the accident which was caused due to the negligence of A.
Relations in which Vicarious Liability arises
These are the major relations in which vicarious liability of a person arises
1. Master and Servant.
2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.
Vicarious Liability of Master for torts by Servant
In a Master-Servant relationship, the master employs the services of the servant and he works
on the command of master and thus a special relation exists between the two and in case of a
tort committed by the servant, his master is also held liable.
There are many cases in which the servant does an act for his master and thus in law, it is
deemed that the master was doing that act himself, therefore if the servant commits an unlawful
act the master will also be held liable for the same. This liability of the master is based on the
following two maxims
1.Qui facit per alium facit per se: – It means that whenever a person gets something done by
another person then the person is viewed to be doing such an act himself.
Illustration: If A is the owner of many trucks and employs drivers to drive them for the
purpose of trade and in case one of his drivers gets into an accident because of his rash driving,
then even though A did not drive the truck himself, he will be liable for the accident.
2. Respondant Superior: – It means that the superior should be held responsible for the acts
done by his subordinate.
These two maxims have played a significant role in the development of the law of vicarious
liability of the master.
Essentials of Vicarious liability in Master-Servant Relationship
These essential conditions have to be followed for the vicarious liability of master to arise: –
1. The servant has committed an act which amounts to a tort.
2. Such a tortious act is committed by the servant during the course of his employment under
the master.
Reasons for liability of the Master
There are several reasons behind holding the master liable for the acts of his servants which
are: –
1. An act which is committed by the servant is considered to be done by the master
through him and therefore in the law of torts, it is assumed that if any wrong is done
by the servant, it has been committed by his master indirectly and so the master is
held liable for these wrongs.
2. The master is in a better financial position as compared to his servant and thus in
case of any loss caused by the tortious act of the servant, the master is better suited
to pay off the damages to the victim of the act. Also, since the master is made liable
he makes sure that all reasonable care and precautions are carried so that he can
avoid such liability.
3. When a servant does any act, the benefit from such an act is enjoyed by the master
and thus for the liability arising out of the servant’s act, the master should also
shoulder that liability.
Test for Determining Master-Servant Relationship
For the determination of a Master-Servant relationship, certain tests have been developed over
a long period of time.
Traditional View – Control Test
As per this test, for the determination of a master and servant relationship, it should be seen
whether the master has the power to not only instruct what should be done but also the manner
of doing the act and if such power exists then as per this test, the master and servant relationship
exists between the two.
Illustration: A is the owner of a big area of land on which farming activities are carried out
and he has hired many workers for farming. A, not only instructs them how to do their jobs but
also how to do it. Here, by the test of control, the relation between A and his employees is
established as that of a master-servant.
Modern View
The old Control test is not applicable as an exhaustive test because in cases of work requiring
skill such as a doctor working in a hospital, the owner of the Hospital cannot instruct the doctor
on how to treat a patient and can only instruct him to treat patients. Thus certain other tests
have been developed for determining the Master and Servant Relationship.
The test of work being an Integral Part of Business
In the case of Stevenson Jordan & Harrison Ltd. V Macdonald & Evans (1952) 1 TLR
101, the test of an integral part of the business was applied. Here, a contract of service was
held to be a contract for such work which is an integral part of the business and a contract for
service was held to be a contract for such work which is not an integral part of the business.
Illustration: In an IT company the programmers are the employees of the company and there
is a master-servant relationship but if the company has hired catering services, the company
does not have a master-servant relationship because the act of providing food is not an integral
part of an IT company.
Multiple Test
This test provides that people who are in a contract of service are deemed to be employees
whereas the people who are in contract for service are independent contractors. In the case
of Ready Mixed Concrete v Minister of Pensions and National Insurance (1968) 2 QB 497,
three conditions were laid down for a contract of service
1. The servant agrees to provide his skill and work to the master for performing some
service in exchange for wages or some other consideration.
2. He agrees to be subjected to such a degree of control so as to make the person his
master in performance of his work.
3. The other provisions of the contract are consistent with this provision of being a
contract of service.
This view was also reiterated in the case of The Management of Indian Bank v. The Presiding
Officer.
This test also includes other important factors that are used to determine the master-servant
relationship such as who owns the tools being used for the work, is the employee paid wages
monthly or on a daily basis and all other relevant factors.
Thus the old view of using Control test is no longer the only method of determining the relation
of master and servant as it has been realized that in the present complex world where there are
a wide number of factors which affect the process of determining the relation between the
employee and the employer, it is not possible to use just one test and thus the various aspects
of a case are seen to determine the nature of the relationship and to decide whether such a
relation is that of master and servant or not.
Difference between Servant and Independent contractor
A servant and an independent contractor both do the work at the behest of another person and
thus what shall be done is not decided by them but by some other person and thus on the face
of it appears, that both are in the same category and a master should be liable for the torts
committed by both of them but there is a difference between the two which separates them and
consequently, while, in case of tort by servant, the master is liable but in case of independent
contractor the master cannot be held liable.
In case of a servant there is a contract of service which means that along with instructing what
task should be done by the servant, the master also has the right to instruct the manner in which
that act has to be done and thus the servant does not have autonomy in the performance of his
duties.
Illustration: P is the owner of a newspaper in which many editors are working. Here P as the
owner has the right of telling them which news should be covered and how it should be written.
Whereas in the case of an independent contractor there is a contract for service which means
that he can only be instructed as to what should be done but how to do the work is left at his
will and he does not take any instructions from the master.
Illustration: If P is the owner of a newspaper and his machinery is damaged and he calls J to
repair it. Here P can instruct him what to do but how to repair the machinery is left to be done
by J without any instructions from P.
Various ways in which liability of Master arises
A master becomes liable in the following situations:
Wrong done as a natural consequence of an act by Servant for Master with due care
If the employee does an act which is done in pursuance of the instructions of the master, then
the master will be held liable for any wrong which arises out of such an act even if all due care
is taken by the employee in discharging his work.
In Gregory v. Piper (1829) 9 B & C 591, the defendant and plaintiff had some disputes
between them and the defendant, therefore, ordered his servant to place rubbish across a
pathway to prevent the plaintiff from proceeding on that way and the servant took all care to
ensure that no part of it was touching the part of the plaintiff’s property but with the passage
of some time. The rubbish slid down and touched the walls of the plaintiff and thus he sued for
trespass. The defendant was held liable despite his servant taking all due care.
Wrong due to Negligence of Worker
A master is also liable for an act of servant which he does negligently or fails to take due care
in carrying out.
In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), deceased was
travelling in a car driven by the manager of the respondent company and it met with an accident
as a result of which he died. The dependents of the deceased filed a claim and the tribunal
allowed damages but on appeal to the High Court, it was set aside on the grounds that the
accident does not make the respondent company liable. But the Supreme Court in its judgement
overruled the judgement of the High Court and held that from the facts of the case it was clear
that the accident had occurred due to the negligence of the manager who was driving the vehicle
in the course of his employment and therefore, the respondent company was liable for his
negligent act.
Illustration: If H works as a house cleaner for K then there is a master and servant relationship
between them but, if H instead of cleaning the house decides to cook food even though he has
only been hired for cleaning the house and due to his negligence causes a fire which also causes
loss to K’s neighbour L, then K, will not be liable because H did an act which was outside the
course of his employment.
Wrong by excess or mistaken execution of a lawful authority
For making the master liable in such a case it has to be shown that: –
1. The servant had intended to do an act on behalf of his master, which he was
authorized to do.
2. The act would have been lawful if it was done in those circumstances which the
servant mistakenly believed were true or if the act would have been lawful if done
properly.
In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a railway company
while working mistakenly believed that the plaintiff was in the wrong carriage even though he
was in the right one. The porter thus pulled the plaintiff as a result of which the plaintiff
sustained injuries. Here, the Court held the railway company vicariously liable for the act of
the porter because it was done in the course of his employment and this act would have been
proper if the plaintiff was indeed in the wrong carriage.
In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner went to a bank and
while entering inside it, the cash box of the bank was also being carried inside and as a result,
the security guard in a haste shot him and caused his death. The petitioner had claimed that the
bank was vicariously liable in the case because the security guard had done such act in the
course of employment but the bank had contended that it had not authorized the guard to shoot.
The Court held the bank liable as the act of giving him gun amounted to authorize him to shoot
when he deemed it necessary and while the guard had acted overzealously in his duties but it
was still done in the course of employment.
Wrong committed willfully by a servant with the intention of serving the
purpose of the master
If a servant does any act willfully, recklessly or improperly then the master will be held liable
for any wrong arising out of such act, if such an act is done in the course of employment.
In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of the defendant
company, willfully and against the express orders not to get involved in racing or to obstruct
other omnibuses, had driven to obstruct the omnibus of the plaintiff. In the case, the Court held
that the defendant company was liable for the act of driver because the driver’s act of driving
the omnibus was within the scope of the course of employment.
In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff was a customer who
on being intoxicated was refused further drinks by the barman, who was employed under the
respondent and thus the plaintiff threw a glass at him. The barman took a piece of the glass and
threw it at him which hit his eye. The respondent hotel was held liable due to the act of the
barman who had a master-servant relation with them.
Wrong by Servant’s Fraudulent Act
A master can also be held liable for any fraudulent act of the servant.
In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a widow who owned 1000
pounds as dues on a mortgage and a cottage. She went to the manager of the defendant, which
was a firm of solicitors, and she asked for his advice to get richer. The manager told her to sell
her cottage and to call up the amount of mortgage. She authorized the manager to sell the
property and to collect her money but he absconded with the money. Thus, she sued the
defendant company. It was held that the defendant was liable for the fraudulent act of the
manager because even a fraudulent act is not authorized, the manager was authorized to take
her signature and thus it was within the course of employment.
Illustration: If A goes to a bank and deposits a check with C, an employee of the bank and C
fraudulently transfers that amount to his wife’s account. Here for the fraudulent act of C, the
bank will be liable.
Conclusion
Under Vicarious Liability a person can be held liable for the torts committed by another person
if that person shares a Master-Servant relation with him. The servant does the act on behalf of
his master and therefore the law of torts provides that any wrongful act which is done in the
course of employment by the servant is bound to make the master liable for it. There have been
several tests for determining the relation of master and servant and the Court also applies its
discretion according to the facts of the case to determine such a relationship.
2. VL, liability for criminal offences
Under criminal law also one person can become liable for the act of the other if he is a party to the
offense. For instance, a driver of a car which goes and robs a bank will also be liable even though
the driver did not get out of the car. The principle which is followed in the criminal law is that a
person may be held liable as the principal offender, even though the actus reus was committed by
some other person. The person committing the act on the instruction of the other will not be
considered as innocent and will also be held liable. The law focuses on the relationship between
the two parties and attributes the act of the one to the other. It should be noted that the concept of
vicarious liability is a civil concept and in the case of criminal law it is an exception rather than a
rule.
Indian View
Although the doctrine of vicarious liability is generally applicable to civil law, in some
exceptional cases it is applicable in criminal cases also. Section 149 of the IPC. Under Section
149 of the IPC if any member of an unlawful assembly commits any offense in furtherance of a
common objective, every member of that unlawful assembly will be held liable for that offense.
Section 154[3] of the IPC relates to occupiers or owner of a land. If such occupier or owner or
any person who has some interest in the piece of land does not inform the proper public authority
about unlawful assembly on that land, or do not take necessary steps taking place on the land, will
also be held liable for such activities. The liability has been fixed on the assumption that being the
owner or the occupier of the land; the person will be able to control the activities which is
happening on their property. Section 155[4] also makes a person vicariously liable on the owner
or occupier of the land for the omission of their agent or manager if any activity takes place on the
land and the agent or manager does not prevent illegal activities happening on their
property. Section 156[5] imposes personal liability on the agent or the manager if some illegal
activity takes place on the particular property.
Section 268[6] and Section 269[7] deals with public nuisance and makes the master personally
liable if the servant is creating any public nuisance. Section 499[8] of the IPC also makes the
master personally liable in case the servant defames somebody (provided it falls under the
definition of defamation given under this section).
Liability of Corporations in Cases of Criminal Wrongs
The earlier view was that a corporation cannot commit a criminal wrong. But that view has
changed in the present scenario. A corporation has a separate legal entity and is an artificial
person. But it cannot work on their own. It works through its agents. So whenever some act is
committed by a company which is not legal, its agents are punished and hence, the liability is
necessarily vicarious. A corporation cannot commit crimes like rape, murder, perjury, etc. But it
has been recognized that a company can commit activities which have criminal intent.
Liability of State for Acts of Employees
In England, the state cannot be held liable for the acts which have been committed by its servant.
The principle behind this is based on the doctrine of Rex non-potestpeccare[9] which states that
the King can do no wrong.
In India also, the same position existed till 1967 and the State couldn’t be sued for the action of its
servants. But in the judicial pronouncement of Superintendent and Remembrance of Legal Affairs,
West Bengal v Corp. of Calcutta,[10] it was held by the Court that the principle that the State isn’t
bound by any statute is not the law of the land after the Constitution has come into force. Civil
and criminal statues now apply to citizens and state alike. In the case of Saheli v, Commissioner of
Police,[11] the Court was of the opinion that the concept of sovereign immunity does not hold
good with the evolution of law, and Constitutional Regime and the State can also be made liable.
3. In any modern society, interactions between the State and the citizens are large in
their number, frequent in their periodicity and important from the point of view
of their effect on the lives and fortunes of citizens. Such interactions often raise
legal problems, whose solution requires an application of various provisions and
doctrines.
Vicarious Liability Of The State
Here, the words "administration" and "state" are interchangeable. It is a difficult question to answer
whether the government would be held accountable for the wrongdoings of its employees, especially
in developing nations where the scope of state involvement is expanding. The Constitution's clauses
and the public law principles inherited from British common law govern the government's tort
liability.
Three guiding principles serve as the foundation for the concept of state vicarious liability for the
wrongs carried out by its agents:
Respondeat Superior (Let The Principal Be Liable).
Quifacit Per Alium Facit Per Se (He Who Acts Through Another Does It Himself).
Socialization Of Compensation.
Vicarious Liability of State in India
According to Article 300 of the Constitution, the position of State liability is as follows: In accordance
with Clause (1) of Article 300 of the Constitution, the Government of India may sue or be sued by the
name of the Union of India and the Government of a State may sue or be sued by the name of the
State.
Additionally, the Government of India or the Government of a State may sue or be sued in relation to
their respective affairs in similar circumstances to those in which the Dominion of India and the
corresponding Provinces or the corresponding Indian States might have sued or been sued "if this
Constitution had not been enacted" Thirdly, any provisions that may be made by an Act of Parliament
or the Legislature of such State, enacted in accordance with authority granted by the Constitution,
shall be subject to the second mentioned rule.
State Liability
According to the dictum "The King can do no wrong" in English common law, the King was not
responsible for the wrongs committed by his or her servants. The Crown Proceedings Act of 1947
altered the position of the old Common law maxim in England, though. Before, the King could not be
held liable in a tort case for any wrong that was actually authorised by it or that was carried out by its
servants while they were working for it.
The Crown Proceedings Act was passed in response to the growing state's functions, and as a result,
the Crown is now equally responsible for any wrongdoing carried out by its employees as a private
person. Similar to this, in America, the Federal Torts Claims Act, 1946, lays out the guiding principles
and essentially settles the issue of State liability.
Pre-Constitution Judicial Decisions relating to Vicarious Liability of State:
Peninsular & Oriental Steam Navigation Company v Secretary:
It drew a very distinct line between the state's sovereign and non-sovereign functions.
Secretary of State v. Hari Bhanji:
In this case, the Madras High Court ruled that only state acts were immune from prosecution.
Although the P & O Case ruling provided examples of situations where the immunity was applicable,
it did not extend beyond acts of State.
Post Constitution Judicial Decisions relating to Vicarious Liability of State
State of Rajasthan v. Vidyawati:
In this case, it was decided that the State should share in the same tort liability as any other employer
for torts committed by its employee while acting in the course and scope of his employment.
Kasturilal v. State of UP:
The court ruled in this case that the respondent's employee committed the act that gave rise to the
current claim for damages while performing work-related duties. Additionally, that employment fell
under the umbrella of sovereign power. This absolved the state of all responsibility.
Conclusion:
The State, not the government, is the party sought to be held liable in each of the cases previously
discussed. According to the government, the statutory authority is neither accountable to it nor
subordinate to it. Therefore, the government cannot be held accountable for the effects of a bad
decision made by a statutory authority.
Given that the State passed the statute through its legislative branch, it is not permitted to make any
such argument. Additionally, the Statute itself or any other authority that the Statute may authorise
appoints the authority. In this situation, the statutory authority's action is taken for and on behalf of
the State. As a result, the state is responsible.
4. A large number of problems arising fall within the area of the law of torts. This is
because, where relief through a civil court is desired, the tort law figures much
more frequently, than any other branch of law. Do you agree with the above
statement. Analyse the same through concept of the emerging Tortious Liability
of the State.
5. The doctrine of ‘common employment’, the defence of contributory negligence
and the defence of volenti non fit injuria, sometimes referred to as the ‘unholy
trinity’ applied in the 19th century. The doctrines protected employers and
prevented virtually any action by employees for workplace injury. However, the
courts and the legislature brought in a lot of reform enabling those at work to
receive compensation from employers. Critically analyze the changes brought
along with relevant statutes, cases and examples.x 2
Doctrine of common employment: The doctrine of Common Employment states that the
master shall not be liable for the negligent act done by one servant affecting the another in
their course of employment. This principle is also known as the ‘Fellow Servant Rule’. The
doctrine of Common Employment is premised on the concept of an implied contract of
service. One employee is impliedly at the risk of causing injury to the other employees. The
doctrine of Common Employment is an exception to the rule of vicarious liability wherein the
master is vicariously liable for the act done by his employee. Since the said doctrine entails
ambiguity, it is restricted to limited use.
Definition of the doctrine of Common Employment
The doctrine of Common Employment is a legal principle that restricts an injured worker
from suing their employer if a coworker negligently caused the injury. The doctrine of
Common Employment originates from common law. It states that when an employer has
given safe, efficient and suitable machinery, tools and appliances as per the duty imposed
upon such an employer by law, then such employer is not liable for any injury caused to an
employee as a result of the act of another employee.
History of the doctrine of Common Employment
The Doctrine of Common Employment originated from English Law. This doctrine was discussed in
the case of Priestly v. Fowler (1837).
Priestley v. Fowler (1837)
In this case, an accident occurred at midnight on 30th May 1835 between Peterborough and Norman
Cross. There was a van that was drawn by four horses being driven by William Beeton. The driver
herein i.e., William Beeton was the employee of Thomas Fowler, a wholesale butcher of Market
Deeping. Later, on the same day at half-past nine at night, the van from Thomas Fowler’s shop set out
near Bull Inn in Market Deeping. The final destination was London, but some of the meat was to be
sold en route at Buckden, which is twenty miles away from Peterborough. Charles Priestley, another
employee of Thomas Fowler, was travelling to Buckden to sell this meat. Later, while the van was
approaching Peterborough, it passed over a few stones and a cracking noise was heard.
As soon as the van left the city, it tumbled over. As a result, Charles Priestley’s thigh was fractured
and his shoulder was dislocated, however, William Beeton was not badly injured. Subsequently,
Charles Priestley’s father, Brown Priestley sued Thomas Fowler for damages as Charles Priestly was
a minor aged 19 at that time. Until 1836, no one had sought damages from their employer for such an
accident by a tort action. The court held that Thomas Fower was not liable as Charles Priestly was
injured due to the negligent overloading of his fellow servant. This judgement mainly laid down the
limit regarding the liability of the employer for the actions of their servants done during the course of
employment.
The doctrine of Common Employment at the beginning of the 19th century was considered to be fair,
however, the usage of the said doctrine was later extended to any kind of injury sustained by the
employee for any ordinary risk of service. Therefore, the scope of the said doctrine became the reason
for its criticism. The main point of defence put forwards in the favour of the said doctrine was that the
employees based on their own will enter into the company and therefore they have all the knowledge
of the potential risks and losses.
When it comes to the case of India, the Workmen’s Compensation Act was introduced in 1923, i.e.,
26 years after it was introduced in England and England borrowed this concept from Germany, which
it introduced in 1884. This newly established law secured the workers by providing them with a right
to get compensation from their employer for injuries suffered in the course of employment,
irrespective of any fault or breach of duty on the part of the employers.
Meaning of the doctrine of Common Employment
The doctrine of Common Employment refers to the rule wherein the employer is not liable for the
negligent act done by one employee to another in the course of their employment. This doctrine is an
exception to the principle that the master is vicariously liable for the act done by his employee. The
said doctrine is based on the implied contract of service. This means that the employee impliedly is at
the risk of injuring another employee. Here, the act of an employee done during the course of
employment refers to the situations where such an employee –

Is involved and engaged in the business of the employer.

The act occurs during the course of the employment, i.e., during the time and within the
limits authorized for employment.

The act must be done to fulfil the requirements of the work regarding such employment

The act should have been done by the employee against another employee without the
knowledge of the employer.
Essentials of the doctrine of Common Employment

The injured person and the wrongdoer should be co-employees. The employer cannot be
held liable if the employee is injured by some outsider who is not employed in such an
establishment. For instance, Bean is employed in an establishment by his employer and
during the course of his employment, an outsider by the name of Teddy injures Bean and
escapes. Here, Bean cannot sue his employer for damages as he was injured by an outsider
and not a co-employee.

During the time of the accident, the employees must be engaged in Common
Employment. For instance, two employees by the names of Bean and Teddy are employed
in an establishment working for the same employer and towards achieving a common
goal. During the course of such Common Employment, Bean injures Teddy gravely. Here,
Teddy can sue his employer since Bean caused him injuries by doing a negligent act
during the course of their Common Employment.
Exceptions to the doctrine of Common Employment
The exceptions to the doctrine of Common Employment are as follows –

If the employer is negligent regarding the action in question. For instance, if an employer
does not repair a faulty machine and still negligently allows their employees to work on it.

If the employee acts on behalf of the employer. For instance, when an employer gives
authority to an employee to give further directions/instructions to other employees, such
an employee acts on behalf of the employer with the consent of the employer.

If the employer is aware of the cause and consequences of the action. For instance, when
an employer knows that their action of allowing the employees to work in a particular
working environment will lead to certain consequences and they still allow such action.
Position of the doctrine of Common Employment in India
The doctrine of Common Employment in India has been discussed in various cases and one such case
is Secretary of State v. Rukmini Bai (1937). In this case, the plaintiff’s husband along with one other
employee were killed because of the negligent act of a fellow employee. After perusing the facts of
the case, the High Court of Nagpur allowed the action based on the doctrine of Common
Employment.
Further, in the case of T. and J. Brocklebank Ltd. v. Noor Ahmode (1940), the Privy Council referred
to the aforementioned case of the High Court of Nagpur but it did not establish any final opinion. In
the case of Governor-General in Council v. Constance Zena Wells (1949), the Privy Council held that
doctrine of Common Employment can be applied in India. However, the scope of the said doctrine is
limited by Section 3(d) of the Indian Employer’s Liability Act, 1938. In this case, the plaintiff’s
husband was a fireman in the defendant’s railways. The plaintiff’s husband was killed in an accident
caused by the negligence of a fellow employee who was a railway driver. The Privy Council held that
the defence of Common Employment can be resorted to by the defendant and the plaintiff’s claim for
compensation was dismissed by the Privy Council. The doctrine of Common Employment is
considered an exception to the doctrine of vicarious liability wherein the employer is made liable for
the negligent acts of their employees and agents.
Judicial approach towards the doctrine of Common Employment
Young v. Edward Box (1951)
This case is one of the landmark cases dealing with the doctrine of Common Employment. In the
instant case, the owner of a lorry sent his servant on some work and he also instructed the servant to
also give a lift to people under any circumstances. As a result, the owner of the lorry will be liable for
the acts of the servant done during the journey since such acts were done by him during the course of
his employment.
Sitaram Motilal Kakal v. Santanuprasad Jaishankar Bhatt (1966)
In this case, the decision of the aforementioned case was reiterated. The instant case further
established that the employer’s liability can arise only when a wrongful act was authorized by the
employer or when a wrongful or unauthorized mode of doing some act was authorized by the
employer. The vicarious liability of the employer is applied irrespective of the lawful or unlawful
nature of the acts of the servant and the employer would be liable for the alleged wrongful or
negligent act of the servant taken place during the course of employment.
Pushpabai Purshottam Udeshi and Others v. Ranjit Ginning and Pressing Co. (P) Ltd. and Another
(1977)
In this case, it was held that the owner shall be liable in the case where a driver with the consent of the
owner drives the car during the course of the owner’s business or its purpose. The Supreme Court
based on the facts of the instant case held that since the accident took place during the course of
employment, the decision taken in the aforementioned case of Sitaram Motilal Kakal v.
Santanuprasad Jaishankar Bhatt (1966) cannot be considered.
Sadu Ganaji v. Shankerrao Deoraoji Deshmukh And Another (1954)
In this case, the issue was whether the doctrine of Common Employment which originated in England
in 1837 in the case of Priestley v. Fowler (1837) should be followed in India as a principle as per
justice, equity and good conscience or not. It was held that in any case, the doctrine of Common
Employment must be applied based on the unique facts and circumstances of such case by also giving
importance to the Statute law which modifies the common law.
Critical analysis of the doctrine of Common Employment
The decision of the Privy Council in the case of Governor-General in Council v. Constance Zena
Wells (1949) recognized the defence of Common Employment in India and thus Section 3 of
Employers’ Liability Act, 1938 was amended in 1951. This amendment abolished the defence of
Common Employment in India. Therefore, the doctrine of Common Employment in India and
England only entails historical value.
Further, the law concerning vicarious liability is evolving and developing. Moreover, the approach of
the Courts has become more liberal and the trend is heading towards making the employer liable for
the acts of the employee. The concept of no-fault liability has also been introduced in the Motor
Vehicles Act, 1988. Thus it can be understood that there is a shift in the ideology from the doctrine of
Common Employment to the doctrine of vicarious liability which makes the employer responsible for
the acts of the employees.
Conclusion
The doctrine of Common Employment refers to the rule wherein the employer is not liable for the
negligent act done by one employee to another in the course of their employment. This doctrine is an
exception to the principle that the master is vicariously liable for the act done by his employee. The
doctrine of Common Employment is also known as the Fellow Servant Rule.
It is a common-law doctrine that holds that an employer is not liable for the injuries of an employee
that are caused by a negligent co-employee. Section 3 of the Employers’ Liability Act, 1938 was
amended in 1951 and by this amendment, the doctrine of Common Employment was abolished in
India.
Defence of contributory negligence:
6. Criminal/ negligent act of employee x 3
7. Critically analyze the role of the courts in developing the jurisprudence of
constitutional torts.
The origin of Constitutional law may be traced back to the time when the common medieval saying of
“Res Non-Potest Peccare” i.e. ‘the king can do no wrong’ (as the king was considered the son of God)
started losing its acceptance in the eyes of the public. After the 18th century, with the advent and
emergence of new democracies and industries, it became important to take acts done with state’s
authority under judicial scrutiny so that, those who suffered from such acts may get justice in due course.
Art. 300 gives the right to the public to sue the state.
Landmark judgements on Constitutional Tort
1. P & O Navigation Company v Secretary of State for India– This was the first case in which
the Sovereign immunity of the state was debated. There was a piece of a funnel made up of
iron which was being carried by some workers on a Government’s steamer, which in its
way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for damages due to
negligence on the part of the servants employed by the govt.
Held- “The Government cannot be held liable when the injuries are caused while carrying out sovereign
functions but is liable when the acts of the servants are non-sovereign functions”.
2. Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a
pedestrian who eventually died of an accident. The plea of Sovereign immunity was rejected
but it was held that the government cannot be held liable for the “Act of State” under Article
300. Compensation of Rs. 15000 was given. The Hon’ble Supreme Court stated that “in the
modern era, the liability of State is not limited to Sovereign functions, but is socialistic and
is related to the welfare of the people and thus, the old immunity of State functions is
irrelevant”.
3. Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the
Plaintiff. The head constable later misappropriated the gold and flew with it to Pakistan.
The Court did not take account of the judgement in Vidyawati case and ruled in favour of
the State stating that the act was sovereign in nature. It was held that the law established
in P & O Navigation is still good law. The court was not pleased as it could help the
Plaintiff with its ruling. Through this judgement, in addition to disapproving the law
in Vidyawati, it was also added by the Court that the state is not liable when the tort is done
in statutory power by its servants.
4. Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the
foundation of new reasoning in matters involving constitutional tort and compensation. In
this case, the plaintiff who has been denied his pension, without much discussion, was
allowed to recover exemplary damages of Rs. 25000 for being harassed by the defendant
deliberately.
5. Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state
for his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost.
The question presented before the Apex court was whether the court can award monetary
damages under its jurisdiction as given in Article 32 or not.
The court gave the answer in affirmative by stating that monetary damages under article 32 may be
granted and thus gave a judgement that proved to be a giant leap in the cases involving both
constitutional tort and compensation.
The judgement formulated two landmark rules by holding that:
1. Civil liability can arise when constitutional rights are violated.
2. Civil liability can also emerge when there is a violation of personal liberty.
Conclusion
While concluding, it may be stated that the doctrine of Constitutional Tort is a creative jurisprudence
evolved by the Courts in spite of the fact that the criteria employed had faced various criticism in the
past. The Apex Court must evolve a scientific criterion for future cases. The “voting right model” of
the United States may be adopted for measuring the damages in Constitutional Tort actions to prevent
the victim from a legal injury to their rights.
8. Distinguish between ‘contract of service’ and ‘contract for service’ in the light of
the traditional and modern views. Can there be vicariously liability for criminal
conduct of an employee? Illustrate with latest cases and developments. X 2
In today’s world, organizations tend to enter into a number of contracts with a large number of
people/organizations for meeting their business and day-to-day requirements.
Organizations hire employees or engage the services of a third party to meet their needs. However, for
all purposes, they enter into a number of contracts.
All such contracts entered into by the company can be broadly divided into two categories
Contract for services/work for hire agreement
Parties: A contract for service is an agreement that is entered into by the company with a third-party
for availing its services.
The third-party is an independent service provider, not an employee of the company.
The third party is not entitled to the benefits that the employees of the company receive or are entitled
to from time to time during the course of their employment.
Control: The company does not exercise control over the third-party.
Purpose and ownership of intellectual property: The company enters into such contracts where
they want the service provider to assign the ownership of the intellectual property rights in the created
work to it and in return pay for the work done by the service provider.
Examples where a contract for services is entered into1. A company taking the assistance of a third party to develop a website for them,
development of certain artwork, etc.
2. A company hiring the services of a photographer for their new jewellery. collection.
3. A film producer hiring the services of an animation artist for his movie.
 Contract of services/employment contracts
Parties: A contract of service is an agreement that is entered into by the company with an individual
for availing his/her services.
The individual here is the employee of the company and is entitled to the benefits that the employees
of the company receive or are entitled to from time to time during the course of their employment.
Control: The Company enjoys control over the work created by the employee and the employee is
bound to obey the orders of his employer.
Ownership of intellectual property: The ownership of the intellectual property created by the
employee rests with the company.
Exception-However, in cases where an invention is created by the employee during the course of his
employment, such ownership rests solely with the employee.
In order to claim ownership over such intellectual property, a separate inventions assignment
agreement can be entered into or a clause regarding the same can be incorporated in the terms and
conditions of the employment.
Description
Contract for Service
Contract of Service
Parties
Company and third party
Company and employee
Relationship of the parties
Independent contract/
consultancy
Employer-Employee
Control over the work
The third party is not bound to
obey the instructions of the
company
The employee is bound to obey the
instructions of the employer
Ownership of all the rights
arising from the work created
out of contract
The company gets ownership
after paying for the services to
the third party
The company is by default the owner of
the work done by the employee, except in
cases of inventions
9. Liability of hospital for negligence of doctor x 2
10. Harwood v royal hotel oaks x 2
11. Vl for expressly forbidden acts
Strict Liability
1. Critically examine the applicability of the rule of Strict Liability in Indian
Context. Distinguish between Strict Liability and Absolute Liability under Law of
Torts. X 3
Strict Liability is the rule which makes any person owning a hazardous or dangerous object on his
land liable for any damage caused, due to the escape of such object, irrespective of the individual’s
intent in causing such damage or harm. Strict liability had the exceptions, stating that in case such
escape occurred due to the Act of God, an act of Third Party, an act of the Plaintiff, or in pursuance of
a statutory obligation, the liability would not apply. Strict Liability is applied in an event that harm
occurs as a result of the miscarriage of any lawful activity that, considering its manner and place of
use, is unusual, extraordinary, or inappropriate. Therefore, by taking into account the ratios stated in
the Chamber and the House of Lords, we can state that for an act to amount to strict liability, the
following preconditions should be fulfilled:
1. The individual has brought something onto their land.
2. The individual has made a ‘non-natural’ utilization of such item on the land.
3. The item was such as is likely to cause a nuisance if it escapes from the said land.
4. The item did escape and caused damage and repercussions owing to sich non-natural use
of it on the land.
Essentials of strict liability
From the ratio decidendi of the above-mentioned case, as held in the Court of Exchequer and the
House of Lords, the rule of ‘Strict Liability’ was nurtured, which then became a full-fledged legal
principle, based on the prerequisites as stated in the case of 1868. For ‘Strict Liability’ to be legally
enforceable on an action, the action has to fulfil certain characteristics, which make it eligible to be
classified as an act that would call for the imposition of strict liability.
Dangerous Thing
The first requirement for this principle to be applicable is the presence of a dangerous
thing/item/object on the land. As per the principle, any item that can escape from the land and is likely
to cause damage to another person or property would be considered falling within the ambit of a
‘dangerous thing’. As in the case of Rylands v. Fletcher stated hereinabove, the dangerous thing
present would be the large quantity of water stored in the reservoir. Any such substance, the escape of
which can cause danger to others, including gases, explosives, chemicals, etc. would be considered as
a dangerous thing.
Escape of such dangerous thing
The second prerequisite for an act or action would be the escape of such dangerous article, from the
land whereon it is brought. The dangerous substance should leave the premises of the individual and
escape from its containment so as to cause danger to the person or property of another. However, in
case the thing escapes and something happens to the plaintiff due to their own fault, then the
individual owning such a dangerous thing is not held liable.
In the case of Read v. Lyons and Co., Read was an employee with the defendant company, which was
an ammunition manufacturing company. While she was working, a shell manufactured by the
company burst, and she suffered many injuries. It was held that the defendant was not liable, because
the dangerous item (i.e. the shell) did not escape the premises of the defendant, and thus the principle
was not applicable in the situation. Therefore, the actual escape of the dangerous item from the
premises of its owner is required for the principal to apply.
Non-Natural Use of Land
The third precondition of Strict Liability is the non-natural use of land. In the above-mentioned case
of Rylands v. Fletcher, The large quantity of water in the reservoir resulted in the non-natural use of
land. For the use to be considered as a ‘non-natural use’, it must be for an extraordinary purpose,
followed by an increased danger to people and property.
In Sochacki v. Sas, the Court held that a fire in the fireplace is an ordinary use of the land and if this
fire spreads outside the premises, strict liability as a concept would not be applicable therein. The
supply of electricity through lines, cooking gas through pipes, etc. are natural uses of land, but if an
individual stores nitrous oxide in a large quantity in his home, that would be considered as a nonnatural use of his land. Therefore, the use of the thing must be in such a manner, that it is not used on
that land in the ordinary course of life.
Exceptions to strict liability
In pursuance of gaining a deep understanding of the concept of Absolute Liability, a brief explanation
of the exceptions of Strict Liability can help us study the concept in an easier manner, since, as stated
hereinabove, Absolute Liability is the difference of Strict Liability and its exceptions.
Act of God
Any event that exclusively and/or directly occurs as a result of natural causes that cannot be foreseen
and therefore prevented using due caution and care, is known as an ‘Act of God’. Keeping the
background of Strict Liability in mind, an Act of God would be in play in an event that the ‘dangerous
thing’ as explained hereinabove, has escaped from the land by a means that is unforeseen, and without
any intervention by the individual owning such thing. Such escape could have been caused by an
external supernatural force, such as earthquakes, tides, floods, storms, and other natural calamities
that cannot be predicted by the individual.
An example of such an exception is seen in Nicholas v. Marsland wherein the defendant Marsland
built a dam on a natural stream flowing into his own land, so as to create an artificial lake on his land.
However, the land experienced heavy rains which caused the dam walls to give way to the pressure,
thus washing away the bridge of the plaintiff. The court held that the defendant was not strictly liable
in this case, as there was no way that Marsland could have predicted the severity of the rains and
protected against it.
Consent Of The Plaintiff/ Plaintiff’s own fault
‘Volenti non-fit injuria’, a phrase is often seen as an exception to tort law, is a valid and accepted
exception to Strict Liability as well. It means that if the plaintiff has voluntarily participated in an act,
knowing it to be dangerous and risky, the plaintiff cannot sue the defendant in case any damage
therein occurs. For explanation, if the plaintiff and defendant are neighbours, who share a water
source on the defendants land, and the damage is caused to the plaintiff due to that common source,
the defendant cannot be held liable in court since the plaintiff has consented and actively participated
in the use of such common water source on the defendant’s premises.
Act of Third Party
When the escape of the dangerous thing is caused by the acts of a Third Party, the rule of Strict
Liability does not apply. A stranger/third party in this context is defined as a person who is not the
servant, agent, or any other party in control of the defendant. However, if the act of such a third party
and/or stranger can be reasonably predicted by the defendant, this exception shall not come into play.
In Box v. Jubb, the defendant owned a reservoir which overflowed as a result of a blockage in the
drain by a third party unknown to the defendant. The court held that the defendant would not be liable
for the damage caused to the plaintiff since he could not reasonably predict such blockage.
Statutory Authority
In the presence of a prevailing statute that mandates the act which is being subject to scrutiny, the rule
of Strict Liability cannot be applied to such an act. Any act that is carried out in furtherance of
authority or statute is a strong defence for a tort charge. However, if there is negligence on the part of
the individual under the order of a statue, then such defence cannot be claimed.
In Green v. Chelsea Co., the defendants were mandated by statute to ensure a continuous flow of
water. However, a water pipe belonging to the company burst, thus flooding the plaintiff’s premises
with water, without any fault or negligence on the part of the defendants. The courts held that the
defendants were not liable as it was performing its statutory duty and did not practice any negligence
on its part.
In understanding these exceptions to Strict Liability, we can further get a better grasp of the
understanding of the evolution of the concept of Absolute Liability.
2. ‘but for’ test in negligence
But-for rule is a rule applied to confirm whether a person’s conduct is responsible for the events
that happened. The rule establishes the connection between the act committed and the damage
suffered. This rule is applied in different areas of law such as tort law, contract law and criminal
law. This rule is mainly applied in tort law to constitute liability in negligence. The rule is also
used in contract law, in determining the accountability of the party in breach of contract and also
in computation of damages. Both in tort law and contract law, the causation of the event has to be
proved. But-for rule is significant in establishing such causation.
The but-for rule has its application in different fields of law. But for the scope of this article, its
application in contract law is focused upon. Hence its place and need of its application along with
the process in contract law will be detailed.
Application of the Rule
But-for rule can be defined as a test applied to the facts in which it is checked whether the event
would have occurred if the defendant’s action did not happen. If the events take place despite
eliminating the defendant’s action, then the defendant will not be held liable. For example, let’s
assume A and B are in a contract where A has to repair B’s car. A failed to repair B’s car properly
and the car faced an accident. In order to prove that A’s liability for the causation of the accident,
but-for rule has to be applied. The rule in this context tries to answer the question “But for the
actions of the A, would the accident have occurred?”. If A could prove that the accident would
have taken place regardless of the repair he has done, A cannot be held liable for the accident.
This is how the rule works.
For a better understanding, the application of the rule in the criminal aspect can be seen in R v.
White [1910] 2 KB 124. In which the accused poisoned his mother in her drink to kill her. But
soon his mother died after a heart attack. It was found that she died of a heart attack before the
poison could take effect. But for the actions of the accused, she would have still been dead. So,
the accused was convicted only for the murder attempt. Likewise, in another case of R v. Pagett
(1983) 76 Cr App R 279, the accused shot the police and when the police counter fired, he used a
pregnant girl as a human shield. By which the girl died and he was held liable for the death of his
girlfriend. The court held that but for the actions of the accused, she would not have died.
In tort law, the notable case is Barnett v. Chelsea & Kensington Hospital [1969] 1 QB 428. Here,
a hospital negligently sent back a seriously ill man without examining. The person died the
following day and the hospital was accused of its negligence. The court held that but for the
negligence of the hospital, the person would have still died. Hence the hospital was held not liable
for the death.
Law of Damages
In contract law, the but-for rule comes into use after the breach of contract to prove the liability
and in claiming damages. Under the Indian Contract Act, 1872, Section 73 deals with
compensation for unliquidated damages caused by the breach of contract and Section 74 deals
with compensation for liquidated damages caused by the breach of contract. In order to claim
such damages, the liability on a party has to be affixed. For which concepts like causation and
remoteness of the damage have to be proven. In proving the causation, the but-for rule is applied.
In Reg. Glass Pty. Ltd. v. Rivers Locking Systems Pty. Ltd. (1968) 120 CLR 516, the defendant
was supposed to install a security door and locking system on the plaintiff’s property as per the
contract. The defendant failed on the duty and the plaintiff’s property was robbed subsequently.
The Court held that but for the defendant’s breach, the loss would not have been suffered. That is
the robbery would not have taken place if the defendant installed the door and locking system.
In India, the Supreme Court has applied the but-for rule in the case of Pannalal Jankidas v.
Mohanlal and Anr 1951 AIR 144. In this appeal, the plaintiffs/ appellants were the agents of the
defendants for purchasing piece goods and storing them in a government godown in Bombay.
One such batch of goods was destroyed by fire due to an explosion in Bombay Harbour. The
appellants received 50% of the damages for the goods as they were uninsured. They sued the
defendants to indemnify them for the other 50% of damages as they were their agents. In
response, the defendants stated that the appellants are supposed to insure the goods as per the
contract and prayed before the court to set off damages claimed to the breach of duty of the
plaintiffs. Here the Supreme Court used the but-for rule to establish the causation in this case. It
was held that “But for the appellants’ neglect of duty to keep the goods insured according to the
agreement, they (the respondents) could have recovered the full value of the goods from the
government. So, there was a direct causal connection between the appellants’ default and the
respondents’ loss”.
The rule was also applied by Andhra High Court in Union of India v. Chekka Ranganayakulu and
Sons AIR 1964 AP 477. In this case, after the death of Sri Potti Sriramulu on 15th December,
1952 several crowds indulged in acts of hooliganism and violence. By which goods lying in the
transhipment platform belonging to the parties in Bezawada railway station and other property
pertaining to the railway administration were looted by the mob. Section 72 of the Indian
Railways Act, railway administration is a bailee under Sections 151, 152 and 161 of the Indian
Contract Act, 1872. Hence the railway administration was sued as they were responsible for the
goods. The court held that “It should be remembered here that, but for the action of the mob the
goods would not have been lost”. The court clearly held that even if leaving the goods on the
transhipment is considered to be negligent, “but for the supervening event, the loss would not
have occurred”.
Doctrine of Causation
It is quintessential in both tort law and contract law to prove the doctrine of causation. For a better
understanding of the but-for rule, the concept of causation needs to be broken down. Causation
can be simply defined as the link between the conduct of the defendant and the damage occurred.
In personal injury cases where negligence is involved, it is necessary to show the presence of duty
and the breach of such duty through causation. In establishing the causation, both the actual cause
and proximate cause of the injury has to be shown. To show the actual cause which is the factual
causation, the but-for rule is applied. This is the process to prove the act of negligence in tort law.
Such a similar process can also be found in contract law where in order to affix the legal liability
on the defendant, it is necessary to show the causation. Such causation is further divided into
factual causation and legal causation. As we have seen, the factual causation is proved using the
but-for rule which is the basic test of all. But the but-for rule is not the sole test for causation. The
High Court of Australia in the case of March v. Stramare (E. And M.H.) Pty. Ltd. [1991] HCA
12 has held that the but-for test is not the exclusive test of causation and inadequate in some
cases. This is because it cannot address a situation where there is more than one cause of damage
which is referred to as the chain of causation. Similarly, in Alexander v. Cambridge Credit Corp
Ltd (1987) 9 NSWLR 310, it was held that in a case where several factors constitute a loss or
damage, the but-for rule is only a guide and the ultimate question has to be whether, as a matter of
common sense, the relevant act or omission was a cause.
Conclusion
The but-for rule originally introduced by the English Courts is used till date in many cases.
Liability in different areas of law is determined on the touchstone of this rule. One such area of
law is contract law. Once a contract is breached and damage arises, it is necessary to determine
the liability. In proving such liability on a party for breaching the contract, the causation of the
damage has to be shown. This is because, as long as the link of causation remains unbroken, the
act of the accused is believed to have caused the consequence. The but for rule plays a vital part in
establishing such factual causation of a case. This is how the rule is used in contract law.
3. Negligence x 2
Introduction
It is already known that the Indian law of torts is based on the English common law. Thus, the law
relating to negligence is adopted and modified by the courts of India on the principles of justice, equity
and good conscience. The term Negligence is derived from the Latin word negligentia, which means
‘failing to pick up’. In the general sense, the term negligence means the act of being careless and in the
legal sense, it signifies the failure to exercise a standard of care which the doer as a reasonable man
should have exercised in a particular situation. Negligence in English law emerged as an independent
cause of action only in the 18th century. Similarly in Indian law, the IPC, 1860 contained no provision
for causing the death of a person by negligence which was subsequently amended in the year 1870 by
inserting section 304A.
Definition of Negligence
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff
which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do something
which a reasonable man would do or doing something which a prudent or reasonable man would not
do.
It can be characterized in three forms-
Nonfeasance: It means the act of failure to do something which a person should have done. For
example, failure to carry out the repairs of an old building when it should have been done.
Misfeasance: It means the act of not doing an action properly when it should have been done properly.
For example, Doing the repairs of an old building but doing so by using very poor quality materials
creating a major probability of a collapse which injures people.
Malfeasance: It means the act of doing something which should not have been done in the first place
itself. For example, using products that are not allowed and combustible to carry out the repairs of an
old building, therefore, converting the building into a firetrap leading to an accident.
Illustration
Z, An owner of a big dog requests his friend X to take care of the dog while he is away. X leaves the
dog unattended who attacks a passerby badly injuring him. Here it will be said that the act occurred due
to the negligence of X.
In the general sense, the extent of liability in tort is determined by the number of damages a party has
incurred. Consequently, in criminal law, the extent of liability is determined by the amount and degree
of negligence.
Essentials of negligence
To commit the tort of negligence, there are primarily 6 main essentials that are required. An act will be
categorized as negligence only if, all the conditions are satisfied namely –
1) Duty Of Care
It is one of the essential conditions of negligence in order to make the person liable.
It means that every person owes, a duty of care, to another person while performing an act. Although
this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be illegal or unlawful
and also cannot be of moral, ethical or religious nature.
In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out decorations in a house.
Soon after The decorator left the house without locking the doors or informing anyone. During his
absence, a thief entered the house and stole some property the value of which the owner of the house
claimed from the decorator. It was held that the decorator was liable as he was negligent in leaving the
house open and failed his duty of care.
2)The Duty must be towards the plaintiff
A duty arises when the law recognizes a relationship between the defendant and the plaintiff and
requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient that the
defendant owed a duty of care towards the plaintiff but it must also be established which is usually
determined
by
the
judge.
In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram car and
while she was being helped in putting her basket on her back, a motor-cyclist after passing the tram
collided with a motor car at a distance of 15 yards which was on the other side of the tram. The
motorcyclist died instantly and the plaintiff could not witness the accident or the dead body since the
tram was standing between her and the place where the accident occurred. She had only heard the sound
of the collision and once the body had been removed from the place of accident, she visited the place
and saw some blood which was left on the road. As a reaction to this incident, she suffered a nervous
shock and gave birth to a still-born child of 8 months because of which she sued the representatives of
the deceased motorcyclist. It was held that the deceased had no duty of care towards the litigant and
therefore she could not claim any damages from the deceased’s representatives.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty of care
to our neighbor or someone we could reasonably expect to be affected by our acts or omissions. It was
held that, despite no contract existed between the manufacturer and the person suffering the damage an
action for negligence could succeed since the plaintiff was successful in her claim that hat she was
entitled to a duty of care even though the defective good i.e a bottle of ginger beer with a snail in it was
bought, not by herself, but by her friend.
3)Breach of Duty to take care
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also
establish that the defendant breached his duty to the plaintiff. A defendant breaches such a duty by
failing to exercise reasonable care in fulfilling the duty. In other words, the breach of a duty of care
means
that
the
person
who
has an existing duty of care should act wisely and not omit or commit any act which he has to do or not
do as said in the case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it means nonobservance of a standard of care.
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to maintain
the compound wall of a post office in good condition on the collapse of which the defendant sustained
injuries. It was held that postal authorities were liable since that had a duty to maintain the post office
premises and due to their breach of duty to do so, the collapse occurred. Hence they were liable to pay
compensation.
In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
A very old clock tower situated right in the middle of a crowded area of Chandni Chowk suddenly
collapsed thereby causing the death of many people. The clock tower was 80 years old although the
normal life span of the clock tower should have been 40-45 years. The clock tower was under the control
of The Municipal Corporation of Delhi and they had a duty of care towards the citizens. By ignoring to
repair the clock tower, they had breached their duty of care toward the public and were thereby liable
4) Actual cause or cause in fact
In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove is that
the defendant’s violation of duty was the actual cause of the damages incurred by him.
This is often called the “but-for” causation which means that, but for the defendant’s actions, the
plaintiff
would
not
have
incurred
the
damages.
For example, When a bus strikes a car, the bus driver’s actions are the actual cause of the accident.
5) Proximate cause
Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause of the
injury. It may not be the first event that set in motion a sequence of events that led to an injury, and it
may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable
consequences without intervention from anyone else. A defendant in a negligence case is only
responsible for those damages that the defendant could have foreseen through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while trying to catch a
train and was carrying a packed item with him. The employees of the railway saw the man who was
attempting to board the train and thought that he was struggling to do so. An employee on the rail car
attempted to pull him inside the train while the other employee who was on the platform attempted to
push him to board the train. Due to the actions of the employees, the man dropped the package. Which
had contained fireworks, and exploded when it hit the rails. Due to the explosion, the scales fell from
the opposite end of the station and hit another passenger, Ms. Palsgraf, who then sued the railway
company. The court held that Ms. Palsgraf was not entitled to damages because the relationship between
the action of the employees and the injuries caused to him were not direct enough. Any prudent person
who was in the position of the railway employee could not have been expected to know that the package
contained fireworks and that attempting to assist the man the railcar would trigger the chain of events
which lead to Ms. Palsgraf’s injuries.
6) Consequential harm to the plaintiff
Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that
the failure of the defendant to exercise reasonable care resulted in damages to the plaintiff to whom the
defendant owed a duty of care.
The harm may fall into the following classes:a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.
When such damage is proved, the defendant is bound to compensate the plaintiff for the damages
occurred.
In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court awarded damages
amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl without
following proper medical procedures and not even administering local anaesthesia.
Res ipsa loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine that the
negligence of the defendant led to an unusual event that subsequently caused injury to the plaintiff.
Although generally the duty to prove that the defendant acted negligently lies upon the plaintiff but
through res ipsa loquitur, if the plaintiff presents certain circumstantial facts, it becomes the burden of
the defendant to prove that he was not negligent.
This doctrine arose out of the case of Byrne vs Boadle(1863). The plaintiff was walking by a warehouse
on the road and suffered injuries from a falling barrel of flour which rolled out of a window from the
second floor. At the trial, the plaintiff’s attorney argued that the facts spoke for themselves and
demonstrated the warehouse’s negligence since no other explanation could account for the cause of the
plaintiff’s injuries.
Thus the following are the three essential requirements for the application of this maxim1)The thing causing the damage must be under the control of the defendant or his servants
2)The accident must be such as would not have happened in the ordinary course of things without
negligence.
3)There must be no evidence of the actual cause of the accident.
Defenses available in a suit for negligence
1)Contributory negligence by the plaintiff
Contributory negligence means that when the immediate cause of the damage is the negligence of the
plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a
defense. This is because the plaintiff in such a case is considered to be the author of his own wrong. It
is based on the maxim volenti non fit iniuria which states that if someone willingly places themselves
in a position which might result in harm, they are not entitled to claim for damages caused by such
harm.
The plaintiff is not entitled to recover from the defendant if it is proved that1)The plaintiff by the exercise of ordinary care could have avoided the consequence of the defendant’s
negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an exercise of
ordinary
care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part and
the former cannot sue the latter for the same.
The burden of proving contributory negligence rests on the defendant in the first instance and in the
absence of such evidence, the plaintiff is not bound to prove its non-existence
In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a servant
of the railway company who was in charge of crossing shouted a warning to him. Due to the plaintiff
being deaf, he was unable to hear the warning and was consequently injured. The court held that this
amounted to contributory negligence by him.
2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of human foresight
could have been foreseen and if foreseen could not by any amount of human care and skill have been
resisted. Thus such acts which are caused by the basic forces of nature come under this category.For
example storm,tempest,extraordinary high tide,extraordinary rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural disaster, then the defendant
will not be liable for the same provided that he proves the same in the court of law. This particular
defence was talked in the case of Nichols v. Marsland (1876) in which the defendant had a series of
artificial lakes on his land. There had been no negligence on the part of the defendant in the construction
and maintenance of the artificial lakes. Due to unpredictable heavy rain, some of the reservoirs burst
and swept away four country bridges. It was held by the court that the defendant could not be said to be
liable since the water escaped by the act of God.
3) Inevitable Accident
An inevitable accident can also be called as a defense of negligence and refers to an accident that had
no chance of being prevented by the exercise of ordinary care, caution, and skill. It means a physically
unavoidable accident.
In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting and their owners
attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally
injured the Plaintiff, severely injuring him in the eye. The Plaintiff brought suit against the Defendant
for assault and battery. It was held that the injury of the plaintiff was as a result of an inevitable accident.
Conclusion
Negligence as a tort has evolved from the English law and accepted by the Indian law as a substantially
important tort. As discussed negligence is of two types, civil and criminal and each has various
repercussions. In order to prove that an act was negligent, it is necessary to prove all the essentials
namely duty, breach of duty, damages and actual and proximate cause. An important maxim regarding
negligence i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained. Also,
the defences in a suit for negligence can be used by the defendant to defend himself from a suit issued
by the plaintiff.
4. Absolute liability
In the second principle of the ‘No-Fault Liability’ concept of tort law, Absolute Liability, like its
namesake, makes the individual absolutely liable for actions caused due to escape of a dangerous
object in the non-natural use of land, without any exception. The rule of Strict Liability was
considered to be saturated and concrete up until the 1980s in India, when the greatest disaster of
the Bhopal Gas Leak occurred, where the question of exceptions of Strict Liability came into the
forefront. It was in an unrelated case of the Oleum Gas Leak, wherein the Supreme Court of India
finally created an offshoot of the concept of Strict Liability, known as Absolute Liability, giving
the defendant no defence or exception to shy away from such liability.
Origin of absolute liability in India
In the case of Rylands v. Fletcher, the court established the principle of Strict Liability which was
seen as a solid and concrete concept needing no further analysis in India. The law of the land at that
time was not adept to hold the defendant liable in this case, and therefore Blackburn J implemented
the principle of Strict Liability, which was adjusted by Lords Cairns later to only include those actions
and damages which were attributed to the non-natural use of land. Pursuant to the Bhopal Gas
Tragedy and the Oleum Gas Leak, the Indian Judiciary found it imperative to initiate a concept to
address such rare occurrences, wherein the defendant should have no exception in taking
responsibility for the action that caused such large-scale damages.
Therefore, in the case of M.C. Mehta v. Union of India, the Indian Judiciary, under the guidance of
Justice Bhagwati, finally introduced the concept of Absolute Liability as being applicable in situations
such as those of the case.
The essentials of Absolute Liability are similar to the understanding of Strict Liability, in the sense
that it too requires the preconditions of a dangerous thing, the escape of such dangerous things, and
damage caused due to the escape of such dangerous things. However, as required under Strict
Liability, the essential of ‘Non-natural use of land’ is not a prerequisite to the rule of Absolute
Liability. Blackburn J stated in the Chamber hearing of Rylands v. Fletcher, the escape of a substance
from any kind of its use would make the defendant liable, which was later changed to only the ‘nonnatural use’ of the land by Lord Cairns while addressing Strict Liability in the House of Lords. In
taking Blackburn J’s conception further, absolute liability too, does not differentiate on the use of the
land as natural or non-natural, while determining its applicability. Therefore the essentials of Absolute
Liability are as follows:
1. Dangerous Thing
2. Escape
3. Hazardous or inherently dangerous substance: The major distinguishing factor in the
essentials of Absolute Liability is the presence of a hazardous or inherently dangerous
substance on the land. This means that if the defendant has a hazardous substance on his
land, no matter what its use, such a defendant would be absolutely liable if such substance
escapes his premises. The liability does not lie in the use of an object or thing, but in the
nature of such an object or thing. Hazardous defined under Section 2 of the Public
Liability Insurance Act 1991, is ‘any substance or preparation which is defined as
hazardous substance under the Environment (Protection) Act, 1986 (29 of 1986), and
exceeding such quantity as may be specified, by notification, by the Central Government’.
This is the imperative distinguishing factor that validates the application of Absolute
Liability.
Need for the principle of absolute liability
The rule of Strict Liability was introduced in Rylands v Fletcher as seen hereinabove. This rule in the
case concerned has many exceptions, that the actual spectrum of the liability becomes very narrow.
This old principle as brought out in 1868, may not suit all countries as well as it did then, due to the
dynamic nature of technology and society. Though India did follow the laws of England since the preindependence era, adjustments and amendments have been made to suit the country’s needs over time.
Many rules and concepts which were not quite suitable in the Indian scenario, were modified to fit the
criteria of Indian legislation. In the no-fault liability law, India followed the Strict Liability for itself,
until it realized that this could not be properly applied to the Indian context. The major push came
from the two incidents of the Bhopal Gas tragedy and the Oleum Gas Leak case, which instilled a
realization of the need for a new principle for liability in India, to meet its industrial and economical
requirements.
Difference between strict liability and absolute liability
Sr.
No.
Strict Liability
Absolute Liability
1
In Strict Liability, the point of contention is the
‘non-natural’ use of one’s land in using or
handling an object/thing.
In Absolute Liability, the presence of hazardous or
inherently dangerous substances or objects is
necessary.
2
The escape of the dangerous thing is imperative,
and it cannot be applied to damage caused inside
the premises of the defendant, as seen in the case
of Read v. Lyons and Co. hereinabove.
In Absolute Liability, the escape of such dangerous
things is not necessary, but the mere use of a hazardous
substance makes the party subject to this rule. It is
applicable to damage caused to people inside as well as
outside the defendant’s premises.
The Strict Liability rule has some defences and
exceptions that can be used by the defendant.
These include:
1. Act of God
2. Consent of Plaintiff
3
3. Act of Third Party
4. An act done under Statutory
Authority.
The defendants, therefore, have a chance to be
relieved of the liability by proving that their act
falls in one of the abovementioned exceptions to
Strict Liability.
3. In Absolute Liability, the defendant does not have
any scope for defence or exceptions but is held
completely liable for the damages caused by them in
all circumstances.
4
The rule solely applies to the non-natural use of
land.
This rule applies to the natural or the non-natural use
of any land.
5
Compensatory damages are paid to the plaintiff,
depending on the nature and quantum of the
damages caused to them.
The damages paid to the victims are exemplary in
nature and are much greater as the defendants are
liable for people’s lives and environmental conditions
in such cases.
6
The Strict Liability concept was independently
formed in England in 1868.
The Absolute Liability rule was formulated in India
after the courts realized the shortcomings of Strict
Liabilities. Absolute Liability was inherently Strict
Liability – the exceptions.
5. Rylands v fletcher x 4
Ryland vs. Fletcher- Statement of Facts
1. The defendants, who owned mills in Lancashire, constructed a reservoir on their land,
which lay across from the land of the plaintiff, who had an active coal mine functioning
thereon.
2. The defendants employed a contractor, who, without knowing and without due diligence,
constructed the reservoir on top of make-shift shafts and an abandoned, unstable mine.
3. Through a filled-in shaft of an abandoned mine, water from the reservoir seeped into the
coal mine across the defendants’ land, onto the plaintiffs’ property, thus flooding and
destroying the active mine on his land.
Issues raised in the Court
1. Whether the defendants were liable for negligence themselves irrespective of the proof
negligence on their own part, or on the part of anyone employed by them to make the
reservoir?
2. Whether they were liable for the negligence of the contractor engaged by them to extract
the reservoir?
The Decision by the Trial Court
The trial court held that the defendants were not aware of the broken filled-in shaft of the abandoned
mine which was the source of the flooding, and thus the defendants were not held liable for any
damage caused to the plaintiff. The trial court, therefore, passed the judgment in favour of the
Defendants.
The Decision by Exchequer Chamber
On the appeal filed by the plaintiffs in 1866, the case then was put through to the Exchequer Chamber
for its decision on the matter. The Chamber reversed the decision made by the lower court and held
that a ‘strict liability’ was imposed on the defendants. However, in making this decision, the term
‘strict liability’ in that period had no standing in the tort law. It did not fit into the tenants of Trespass,
Nuisance, Negligence, etc. Thereafter, Blackburn J compared the offence to the offence of trespass
involving cattle and dangerous animals and declared that any individual who knowingly keeps a
dangerous article on their land, must do so at their own cost and consequence, and be prima
facie answerable if such article causes any damage whatsoever.
The Decision by the House of Lords
In 1868, when the defendants appealed to the House of Lords, the court reaffirmed the judgment of
the Chamber, but with some minor adjustments. Lord Cairns ruled that the principle of Strict Liability
as laid down by Blackburn J should only be applied to the ‘non-natural’ use of one’s land, as
distinguished from ‘any purpose’ as mentioned in the previous decision. Lord Cairns shifted focus
from the tendency of water to escape from the defendant’s land to the unnatural use of the defendant’s
land of setting up a reservoir near a coal mine.
Remedies
1. Haynes v harwood
The plaintiff (Haynes) was a police officer on duty at a busy street police station, where he was
frequently visited by a large number of people, including youngsters. The defendants (Harwood) had
a two-horse delivery vehicle that was left on the same street without its driver.[1] During this time,
two boys had thrown a stone at one of the horses without anyone interfering.
The horses rested for a Long time until they arrived in front of the police station, where the plaintiff
was in the cellar. The driver had tied a chain to one of the van's wheels, which then broke. When the
police officer saw what was happening, he saw women and children in great danger, and to protect
them, he took the horse offside and tried to stop both horses. The King's Bench was found in favor of
the plaintiff. The defendants appealed to the court.
Thomas John Haynes (Plaintiff) versus G. Harwood & Sons (Defendant)
Procedural History
The present case is under the jurisdiction of the King's Bench of England and Wales and was decided
on October 29, 1934. The Kings Bench Division Court, preceded by Finlay J. in 1934, confirmed the
case that favored the plaintiff and held accountable to the defendant for negligence. In addition, the
appeal was filed in 1935 before the three-person court under the direction of Greer, Maugham, and
Roche L.JJ., which confirmed the previous decision and dismissed the complaint.
Issue:
Does the maxim volenti non-fit injuria prohibit police officers on duty from claiming responsibility
for an injury resulting from a knowing reaction to danger?
Is the horse owner obliged to leave it unattended?
Rule
In the present case, Haynes v. Harwood applied the principle of willful negligence, which is a legal
theory that must be proven before we can hold any person or business liable for the harm they have
suffered. In most incident or injury lawsuits such as car accidents or "slip and fall" cases where
negligence must be proven. The principle of negligence is defined as the damage that the defendant
caused the plaintiff in an undesirable way due to the specific breach of duty and carelessness on the
part of the defendant. There are four elements of negligence that must be met to apply the principle;
H. Duty, injury, causation and compensation.
In Brandon v. Osborne Garrett & Co. [1924 1 K.B. 548][2] a wife was injured for doing something to
safeguard her husband from inflicting more harm by the defendant's wrongful act. The learned judge
overruled the objection that she could not recover because her own act had resulted in her injury.
Volenti non-fit injuria is a common law doctrine that argues that anyone who voluntarily places
himself in a position where injury could occur, knowing that injury could happen, is barred from
bringing a tort claim against the other person.
Analysis / Application
In the present case, Haynes v. Harwood has accused the plaintiff (Haynes) of negligence on the part of
the defendant (Harwood) as it is Harwood's duty to secure and care for the horses, in large part due to
the negligence of the horse van driver who left the horses unattended. Therefore, the captain of the
driver is responsible for the negligence. Another highlight is that due to the mischievous activity of
the child, the horses ran stones thrown at the horse and due to the broken chain on the road, causing
the horse to run on a busy road, which is usually women and children.
On the other hand, based on the common law doctrine, the defendant (Harwood) alleged volenti non
fit injuria, which establishes that if someone voluntarily puts themselves in a situation that could
cause harm, knowing that certain harm could occur and is structured around the policeman who
willingly dares to get on the horse and knows the consequences. The accused argued against the basis
of novus actus interveniensas, which referred to the interruption of the causal chain of such events,
and the main objective of the accused was to stop the horse and protect the woman and children.
In Brandon v. Osborne Garrett & Co. [1924 1 K.B. 548][3], the plaintiffs, husband, and wife were in a
store as customers, a skylight in the roof of the store broke due to the negligence of the contractors
repairing the roof, and some of the glass fell and stuck the husband, which gave him a strong
commotion. His wife, who was standing near him at the time, was not touched by the falling glass, but
believing that her husband was in danger, she instinctively grabbed his arm to pull him out of place.
The husband was entitled to compensation and the wife to an act of novus actus interveniensas, which
was a natural and appropriate act under the circumstances.
Conclusion
In the present case, Haynes V. Harwood has adequately compiled with all the elements of negligence
based on foregoing analysis and the above facts, The court also confirmed the decision in favor of the
plaintiff with the same finding.
As said by GREER, L.J. :
To leave horses unattended, even for such a short time as three minutes, in a place where mischievous
children may be about, where something may be done which may result in the horse running away,
seems to me to be negligent-having regard to the proved circumstances.[4]
Therefore, the plaintiff can successfully claim the defendant for negligence because the defendant
failed to exercise due diligence in this case.
2. Types of damages
A tort is a civil wrong which means that whenever a person commits an unlawful act under this law,
the nature of the case filed in the courts is of civil nature. In civil cases, the person usually files the
case himself so that he can claim compensation from the person who has caused loss to him by his
unlawful act.
Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial
remedies are of three main types:
1. Damages
2. Injunction
3. Specific Restitution of Property
Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies
are called extra-judicial remedies. These are of five main types:
1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress Damage Feasant
Meaning of Damages
There are many remedies which are available to the injured person and the most common remedy is the
award of damages. Damages is that amount of money which the injured person gets from the person
who caused injury to him.
In a claim for damages, the person should have suffered a legal injury because in case no legal injury
happens a person cannot claim damages even if he suffered an actual loss.
Liquidated and Unliquidated damages
Liquidated and unliquidated damages are both provided whenever damage is suffered by a person
because of an unlawful act by another person and thus both are compensation paid to the injured person
but they both differ from each other.
Liquidated damages are those in which the amount of compensation which has to be paid to the injured
person is predetermined. It is usually paid in the cases of contracts where both the parties already know
each other before the damage is caused by any of them and thus the Courts only have to enforce the
condition of such damages.
Illustration: A enters into an agreement with B for selling his goods to B and in the terms of the contract
it has been specified that if the goods are defective then A will have to pay a compensation of Rs.500
to B. If the goods turn out to be defective and B files a case against A then amount of Rs.500 will be
paid by A. Such compensation falls in the category of liquidated damages.
Unliquidated damages are those damages which are not predetermined which means the amount
which has to be paid is not decided before the injury happens to a person. Unliquidated damages are
awarded in cases of tort because often the parties to such a case do not know each other before the
commission of tort and therefore it is not possible for them to fix the amount of compensation
beforehand.
Illustration: A commits the tort of trespass in B’s property and B brings a suit against him in the Court.
Here the award of damages which B will receive will be unliquidated damages, as the amount of
compensation will be determined by the Court.
Principle of Optimal Damages
In the law of torts, the Court while awarding damages to the injured person makes all the possible effort
to ensure that the amount or quantum of damages is optimal. It means that the damages awarded by the
Courts should be reasonable and sufficient and neither insufficient or over-compensation is given to the
claimant.
In determining the optimal damages the following factors are considered by the Court:

The nature and extent of the injury.

Whether the liability of the defendant is vicarious or not.

The relationship between the plaintiff and the defendant.
Thus after considering the relevance of these factors the Court decides the damages which have to be
paid by the defendant in case he is found guilty of tort against the plaintiff.
Damages in Tort
In torts, the damages which are awarded by Courts to the plaintiff can be classified into several heads.
1. Nominal Damages
Nominal damages are those in which even though the plaintiff has suffered a legal injury at the hands
of the defendant, there is no actual suffered by him. These damages are provided in the cases of Injuria
sine damno in which the Court recognises the violation of the right of the plaintiff but the amount of
damages are so nominal or low because of no actual loss to the plaintiff.
In the case of Constantine v. Imperial London Hotels Ltd., The plaintiff was a cricketer from West
Indies who had gone to the defendant hotel to stay but he was rejected on the basis of his nationality,
therefore, the plaintiff stayed at another hotel and did not suffer any actual damage. In the case brought
by him, the defendant was held liable because the plaintiff’s legal right was violated despite no actual
injury happening and they had to pay nominal damages of five guineas.
In the case of Ashby v. White (1703) 92 ER 126, the plaintiff was prevented from voting by the
defendant and the candidate for whom the plaintiff was going to vote still won. The plaintiff sued the
defendant. It was held that even though no actual damage was suffered by the plaintiff, the defendant
was still liable for preventing him from exercising his legal right to vote and thus nominal damages
were awarded in this case.
2. Contemptuous Damages
In these type of damages, the Court recognises that the right of the plaintiff is violated but to show that
the suit brought by the plaintiff is of such a trivial nature that it has only wasted the time of the Court,
the Court awards a meagre amount to the plaintiff as damages. This is similar to the nominal damages
but the only difference between the two is that in nominal damages the plaintiff suffers no actual loss
and in contemptuous damages, the plaintiff suffers actual damage but it is a trivial one in which he does
not deserves to be fully compensated.
Illustration: If A’s dog enters B’s house and relieves himself and B accidentally steps on it and is
disgusted and thus, he brings a suit against A, the Court will rule in B’s favour but because of such a
trivial nature of this case the damages awarded by the Court will be of a meagre amount.
3. Compensatory Damages
Compensatory damages are awarded to help the plaintiff to reach his original position at which he was
before the tort was committed against him. These damages are not awarded to punish the defendant but
to restore the plaintiff to his previous situation. These damages are very helpful in cases of monetary
losses in which the amount of loss can be easily calculated and therefore that amount can be ordered to
be paid to the plaintiff so that he can replace the damaged product or goods with such amount.
Illustration: K takes T’s bike and due to his rash driving the bike gets damaged. Here K can be awarded
compensatory damages in which the amount for repairing the bike will be payable to K by T so that the
bike’s condition can be restored back to its original state.
4. Aggravated Damages
These damages are awarded for the extra harm which is caused to the plaintiff which cannot be
compensated by the compensatory damages and it is given for factors such as the loss of self-esteem,
pain and agony suffered by the plaintiff etc. which cannot be calculated in monetary terms. These
damages are therefore additional damages which are awarded to the plaintiff other than the damages
awarded for his pecuniary loss.
Illustration: A makes false claims against B as a result of which B’s standing in the society is greatly
affected and he is also ridiculed by people which leads to him losing his self-confidence and self-esteem.
Here Court can award B aggravated damages for the humiliation and loss of confidence because of his
suffering which is caused by A’s act.
5. Punitive Damages
These damages are also known as exemplary damages and the purpose of these damages is to punish
the defendant and to make an example of him so that others are deterred from committing the same act
as he did. Thus, whenever a Court feels that the act of the defendant was severely gross, it awards
punitive damages against him to the plaintiff.
Illustration: A company advertises that its pill will help in quick weight loss and is made up of natural
ingredients, as a result, the plaintiff purchases it. But due to the pills containing certain chemicals, it
makes the plaintiff severely ill. Here the Court can not only allow compensatory damages to the plaintiff
but because of the company’s false claims, it can also award punitive damages so that it does not repeat
the act again.
Remoteness
Remoteness of damage is an interesting principle. Once the damage is caused by a wrong, there have
to be liabilities. The question is how much liability can be fixed, and what factor determines it. The
principle of Remoteness of Damages is relevant to such cases. An event constituting a wrong can
constitute of single consequence or may constitute of consequences i.e. series of acts/wrongs. The
damage may be proximate or might be remote, or too remote.
The Problem Of Remoteness
The question of the defendant's liability comes after a tort is committed. A unlawful act's
consequences may be limitless, or there may be consequences of consequences. A cyclist, for
example, strikes a person who is carrying a bomb in his pocket. The device detonates when the
pedestrian is knocked down. The explosion kills the pedestrian and four other people on the road,
while twenty others are severely injured. Due to the same explosion, a neighbouring building is
consumed in flames, injuring several women and children. Can the cyclist be held accountable for all
of these consequences? He is liable only for those consequences which are not too remote from his
conduct. No defendant can be made liable ad infinitum for all the consequences which follow his
wrongful act.
Remote And Proximate Damage
If the damage is too remote in that case the defendant is not liable, but on the other hand if the damage
is and consequences of the act is connected and not too remote in nature so in that case we can say the
defendant is liable. It is not necessary that the event which is immediately connected with the
consequences is proximate and that further from it is too remote.2 Let's take a case example and try to
understand in a very simple way;
Scott V. Shepherd.
On October 28, 1770, Shepherd (defendant) threw a lighted squib (i.e., a parcel containing gunpowder
that was on fire) into a marketplace. The squib landed near a stand where Yates was selling
gingerbread. Willis, afraid of injury and the damage it would cause to Yates's goods, picked up the
squib and threw it across the marketplace. It landed near a stand owned by Ryal, who was also selling
goods. Ryal picked up the squib and threw it again across the market. The squib struck Scott
(plaintiff) in the face and exploded, putting out one of Scott's eyes. Scott brought suit against
Shepherd for trespass and assault. The jury found in favor of Scott.3
This case has become known as the Famous Squib case. The court dismissed the appeal; the injury to
the complainant was the direct and unlawful act of the defendant who originally threw and intended to
throw the squib. The other people were not 'free agents' in this situation and threw on the squib for
their own safety and this was justifiable. The throwing on was classed as a continuation of the
defendant's action, which was intended. Whatever followed this was part of the defendant's original
act.
There are two main tests to determine whether the damage is remote or not:
The test of reasonable foresight
The test of directness
The Test Of Reasonable Foresight
If the consequences of a wrongful act could be foreseen by a reasonable man, then they are not too
remote. If on the other hand, a reasonable man could not have foreseen the consequences, then they
are too remote. And, an individual shall be liable only for the consequences which are not too remote
i.e. which could be foreseen.
The Test Of Directness
According to the 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 which directly follow a wrongful act
are not too remote. The test of reasonable foresight was rejected and the test of directness was
considered to be more appropriate by the court of appeal in Re Polemis and Furness, Withy & Co.
Ltd.
In the case of Re Polemis and Furness, Withy & Co. Ltd. Employees of the defendant had been
loading cargo into the underhold of a ship when they negligently dropped a large plank of wood. As it
fell, the wood knocked against something else, which created a spark which served to ignite the
surrounding petrol fumes, ultimately resulting in the substantial destruction of the ship. At first
instance (arbitration), it was held that the reasonable unforeseeability of the outcome meant that the
defendant was not liable for the cost of the ship.
Issues: Can a defendant be held liable for outcome of events entirely caused by their (or their agents')
actions, but which could not have been foreseen by either the party in question or any other
reasonable party.
Decision/outcome: The Court of Appeal adopted a strict liability approach to causation and assessing
liability here and subsequently held that the defendant was liable for all of the consequences that had
resulted from their negligent actions. The fact that the extent of these consequences was neither
subjectively appreciated nor objectively foreseeable was deemed irrelevant to such a determination.
Notably, this authority would go on to be replaced in the case of Overseas Tankship (UK) Ltd v Morts
Dock and Engineering Co Ltd (The Wagon Mound) (No. 1) [1961] AC 388, however it has never
been officially overturned in English law and theoretically remains 'good case law', despite its lack of
application.
The first authority for the view advocating the directness test is the case of Smith v. London & South
Western Railway Company, in this case the railway company was negligent in allowing a heap of
trimming of hedge and grass near a railway line during dry weather. Spark from the railway engine set
fire to the material. Due to the high wind, the fire was carried to the plaintiff's cottage which was
burnt. The defendant were held liable even though they could not have foreseen the loss to the
cottage.
The test of directness has been considered to be incorrect and was rejected by the judicial committee
of the privy council in Overseas tankship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd. (Wagon
mound case), an appeal from the New South Wales and it was held that the test of reasonable
foresight is the better test.
The Test Of Reasonable Foresight: The Wagon Mound Case
For a while, the test of foreseeability lost its popularity to test of directness but it was the case
of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also popularly known as the
Wagon Mound Case that bought it back in the limelight for jurists. Facts The Wagon Mound was
moored at a wharf in Sydney Harbour. Due to the negligence, oil spilt into the water and was mixed
with the flotsam and floated around to another wharf where a ship was being repaired by welding.
Because of the oil the flotsam caught fire and ignited the wharf. The owner of the wharf claimed
damage caused to him.
The Supreme Court held the appellants liable on the precedent of Re Polemis case, but when the
matter reached the Privy Council the judgement of the SC was reversed and Re Polemis case declared
an unfit for further rulings. It was held that appellants could not have reasonably foreseen the damage
to the respondent's wharf. Therefore, forty years later the Privy Council rejected the test of directness
that was upheld in the Re Polemis case.7
Conclusion
The doctrine of the remoteness of damage is used to decide the compensation to be given when after a
breach or wrongdoing. The wrongdoing may have multiple consequences arising from it which are
divided into two categories- proximate and remote. Only the consequences that fall in the proximate
are the ones the defendant will be held liable for.
They're divided into these categories by the test of directness and test of foreseeability. Today the test
of foreseeability is considered to be more relevant than the test of directness, as an individual should
be held liable only for probable consequences of his wrongdoing.
3. Discuss the historical development of the law relating to ‘Nervous Shock’. Can a
person claim damages caused by the nervous shock that he suffered on seeing the
aftermath of an accident or after being told about the accident?
The law of torts is not fully codified, in absence of any statutory law we have landmark cases to be
followed as Precedents. And with reference to the law relating to nervous shock all we have in hand is
to study the law by tracing the cases. The law of nervous shock has been evolved over the decades by
the courts, wherein they moved from entertaining claims only limited to sudden shock to taking a wider
and more flexible approach in dealing with the claims of an individual taking into account several
eventualities. Initially the courts were reluctant as well as slow in recognising the claims for psychiatric
illness, for it was felt that it would attract dubious and false claims under the garb of psychiatric illness
as it would prove very difficult to outline and define the precise parameters of liability under this field.
For instance difficulty of proving the link between defendant’s conduct and shock to the plaintiff
resulting from the conduct of the defendant. The law of nervous shock has developed through case laws
which date from as far back as 1861. There are numerous English law cases which provide the best
picture of the development of the law in this area. Lynch v knight, one of the earliest cases that
comments on liability for mental damage.The comment, however, was in the nature of obiter dicta and
the case actually involved an action for defamation. The comment made was as follows: “Mental pain
or anxiety the law cannot value and does not pretend to redress, when the unlawful act complained of
causes that alone, though where a material damage occurs, where a material damage occurs, and is
connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the
party interested.” In this, the courts made very clear that the damage that the law takes notice has to be
material, something tangible like a bodily injury. The case which forms the actual starting point for all
the case laws on nervous shock is the case of Victorian Railways Commissioners v. Coultas, the privy
council observed that:
“Damages arising from mere sudden terror unaccompanied by any actual physical injury, but
occasioning a nervous or mental shock, cannot under such circumstances their Lordships think, be
considered a consequence which, in the ordinary course of things, would flow from the negligence of
the gate-keeper” In 1901, however, the courts adopted a more liberal approach in deciding Dulieu v.
White & Sons, in this case, it was noted that shock must be such as “arises from reasonable fear of
immediate personal injury to oneself”. This case brought into picture what is called impact theory.
According to which the plaintiff would be allowed to recover for psychiatric illness provided that this
was caused by reasonable fear of being physically injured by the defendants negligence. Impact theory
was followed for about 20 years until the decision of Hambrook v. Stokes Bros. In order to extend the
law, Bankes LJ was careful to point out that the ratio of the decision was to be confined to situations
where the plaintiff suffered psychiatric illness because of fear for the safety of her children. The decision
was not intended to overturn previous authority to the effect that a plaintiff could not recover in respect
of psychiatric illness caused by witnessing physical injury to a person with whom the plaintiff had no
relationship of love and affection. Nearly twenty years later, in Bourhill v. Young, the question of
psychiatric illness liability came before the House of Lords for the first time. It will be recalled that it
concerned a pregnant woman who, while descending from the tram, heard a road accident occur some
distance away. She later attended the scene of accident, saw blood on the road, and subsequently
suffered a miscarriage produced by shock. The House of Lords held, in effect, that the woman was not
a ―foreseeable claimant. In other words, she could not base her action on a wrong done to someone
else. Thereafter in 1982 the landmark case of McLoughlin v. O’Brian came. In this, the plaintiff was
not present in close proximity of the accident but sustained nervous shock when she was told about the
accident. In holding the defendants liable the House of Lords extended the law to cover a situation
where the plaintiff had not seen or heard the accident itself but had come upon its immediate aftermath.
Lord Wilberforce identified three factors that would need to be identified in every case:

the class of persons whose claims should be recognized;

the proximity of such persons to accident; and

the means by which psychiatric illness was caused. These three control mechanisms
suggested by Lord Wilberforce were subsequently reformulated and applied by a
unanimous house of Lords.
In another case that followed, the decision of the house of Lords was somewhat confusing. Although,
it brought about a distinction between Primary victims and Secondary victims. Primary And
Secondary Victims- A primary victim is a victim who is directly involved in an accident and suffers
injuries as a result of the fault of a tortfeasor. A secondary victim is one who suffers nervous shock
without himself/herself being directly exposed to any physical danger in the accident to the primary
victim. The position of primary victim is governed by the decision in Page v Smith wherein a claimant
may recover for psychiatric harm even though the threatened physical harm does not materialize. Lord
Lloyd reasoned that if a plaintiff could recover for psychiatric illness in a case where he/she had actually
suffered physical harm, it should follow that where the plaintiff had,by good luck, escaped reasonably
foreseeable physical harm, he should not be deprived of compensation by the existence of this purely
fortuitous fact. In essence,what this case laid down was,where there is a danger of physical injury,the
law should consider both the physical as well as the psychological injury as one and the same. This case
is silent where the victim is the secondary victim. The position with regard to secondary victims is
governed by the decision in Alcock v Chief Constable of South Yorkshire. The House of Lords laid
down three control mechanisms that need to be considered in the case of secondary victims, before the
defendant can be held liable for damages. Secondary victims of psychiatric illness had to show not only
that their injuries were reasonably foreseeable; but also had to satisfy the following three tests:
1. Proximity of relationship with the immediate victim.
2. Proximity in time and space to the events causing the psychiatric illness.
3. The means by which the psychiatric illness is caused.
Second and third control mechanisms are sometimes also called proximity of perception. The limits of
the decision in Alcock were explored in the case of white v chief constable of south Yorkshire
Police. It is a 1998 case in English tort law in which police officers who were present in the aftermath
of the Hillsborough disaster sued for post-traumatic stress disorder. The officers present at the stadium
were entitled to succeed without needing to meet Alcock criteria as special rules applied where a
psychiatric illness claimant was a “rescuer” or an employee and the officers in question were both.
Until relatively recently, the tort of negligence relating to claims for psychiatric injury was very
uncertain. However, in recent times, this area of law has become slightly more certain with the laying
down of various guidelines and criteria governing whether an individual can recover damages as a
result of witnessing an event which causes them some form of psychiatric injury.
4. Thin skull rule
The eggshell skull rule or the thin skull rule is neatly summarized by the statement �you take your
victims as you find them'.[1] This essentially means that the frailty of the person cannot be used as a
defence to escape liability.
Even in cases where the injuries are worse than one would have anticipated, the negligent party is still
responsible for all the consequences. The eggshell skull rule gets its name from a common example
often used to describe a situation where the plaintiff would be able to recover when their damages are
worse than expected. In this example, there is an imaginary person who has an extremely thin skull, as
fragile as an eggshell, even though the person looks completely normal. This person is hit in the head
by someone else. A normal person would have been a little injured , but the person with the eggshell
skull dies.[2]
So according to the eggshell skull rule, the person who hit the eggshell skulled person will not be just
liable for the little injury but for the death of the person also even though, it was unforeseeable. The
eggshell skull rule says that the person who hit the eggshell skulled person will be responsible for the
extreme consequences that the person with the eggshell skull suffered, not just the amount of harm a
normal person would have suffered. The eggshell skull rule is often also called thin skull rule.
History
A 14 year old boy, Vosburg, was kicked in the shin by an 11 year old boy George Putney, in school.
Putney kicked so lightly that Vosburg didn't immediately feel it. What Putney didn't know was that
Vosburg already had an injury in his leg and due to the kicking incident Vosburg developed a serious
infection which left him with a weakness in his leg for the rest of his life.[3]
Though the injury was unforeseeable but still the defendant was held liable for all the injuries. This
was the case of Vosburg v. Putney (1890). In this case the concept of eggshell skull rule was
developed. For the first time the name �thin skull' emerged in 1901 in the case of Dulieu v. White &
Sons.
The claimant was pregnant and was standing behind the bar in her husband's public house. A cart
crashed into the pub. The claimant was not physically injured but feared for her safety and suffered
shock. She gave birth prematurely and child suffered mental problems.[4] The judgement given by
Kennedy J. was that it is no answer to the sufferer's claim for damages that he would have suffered
less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart. [5]
The eggshell skull rule has been used in many cases for example, The infamous cases of Smith v.
Leech Brain & Co. Ltd. In this case Mrs. Smith's husband worked in a factory owned by Leech Brain
galvanising steel. He had previously worked in a gas industry, making him prone to cancer. One day
at work he came out from the behind of his protective shield when working and struck in the lip by
molten metal. The burn was treated, but he eventually developed cancer and died three years later.
The protective gear provided to the workers in the factory was not up to the mark.[6] The judge ruled
in favour of the plaintiff. The judge said The test is not whether these employers could reasonably
have foreseen that a burn would cause cancer and that [the victim] would die. The question is whether
these employers could have reasonably foreseen the type of injury he suffered, namely, the burn. If
the initial injury was foreseeable then the defendant will be liable.[7]
Crumbling Skull Rule
There is another well-established doctrine of tort law which people often confuse it with eggshell
skull theory i.e., crumbling skull rule. It is well defined in the landmark judgement of Athey v.
Leonati (1996). The judge said:
The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the plaintiff experienced
anyway. The defendant is liable for the additional damage but not the pre-existing damage[8].
This basically means that if the plaintiff's situation was going to deteriorate eventually even without
the accident, then the defendant won't be liable for the full extent of damage as the principle of tort
law is to reinstate the plaintiff to its original position and not get him into a better position. Also,
in K.L.B v. British Columbia, the judge said This rule is intended to ensure that the plaintiff is not put
in a position better than that which he or she would have been in had the tort not been committed.
Difference between Eggshell Skull Theory and Crumbling skull Theory
In the case of Shaw v. Clark[10], distinction was drawn between the eggshell or the thin skull rule and
the crumbling skull rule. The judge said The distinction between a thin skull case and a crumbling
case is that in the (thin skull), the skull, although thinner than the average skull is in a stable condition
before the accident and, but for the accident would have remained so.[11]
This means that in the case of the eggshell skull theory the plaintiff's condition was more fragile than
a normal person but it would have remained the same if the accident hadn't occurred, whereas in the
case of crumbling skull theory the plaintiff's condition was also more fragile than a normal person but
even if the accident hadn't taken place, the plaintiff's condition would have still deteriorated.
The judge adds The (crumbling skull) is where the skull, whether thick or thin, is not in a stable
condition before the accident but in state of continuing deterioration which the accident has merely
accelerated. In the (crumbling skull), the defendant is not to be held responsible for the whole of the
post-accident condition of the skull. The defendant's actions are not to be treated as having been the
sole cause of the entire post-accident condition of the plaintiff[12]
Indian Cases
In the case of Dr. Sameer Kaushalmar v. Baljeet kaur[13], the complainant Smt.Baljeet Kaur, aged 69
years, took treatment for Urinary Tract Infection (UTI). Dr. Kaushal advised injection named
Mikacin. After 3 days, she found that she was losing hearing power, which was informed to the
doctor. However, doctor told her to continue the injection, as it was necessary for UTI. Further the
patient's condition deteriorated and the complainant became absolutely deaf. The complainant
consulted Dr. Harpreet, ENT surgeon who certified her as absolutely deaf due to �Mikacin'
overdose.
Then, she consulted Dr Chug, who was also of the opinion that due to overdoes, her kidney was
severely affected. Therefore, alleging negligence committed by the doctor who carelessly prescribed
Mikacin for 21 days, a complaint was filed. It was found that the complainant withheld information's
about several previous ailments. She had a history of diabetes for 35 years, hypertension issues for 8
years, decreased vision. Doctor cannot take defence that the patient suppressed previous illness or her
diabetic status.
The judge said that:
I consider that the principle of Eggshell skull doctrine is applicable in this case, wherein liability
exists for damages stemming from aggravation of prior injuries or condition. Another example of an
Indian case where the eggshell skull rule was applied is Jaipur Goldens Gas Victims v. UOI & ors.
What an attorney should prove in an eggshell skull case to make a successful claim?
The attorney fighting the case for the plaintiff should disclose all the pre-existing conditions or
injuries in the court room.
Attorney should bring light to the fact as to how the condition of the plaintiff deteriorated after the
accident and if the accident hadn't taken place the plaintiff wouldn't have suffered from the worsened
injuries. In other words, for a successful claim, the attorney will have to prove that plaintiff wasn't a
crumbling skull plaintiff.
The attorney should explain how the new injuries have affected the plaintiff's life. What all problems
the plaintiff is going suffer which he wouldn't have suffered otherwise.
Conclusion
The eggshell skull theory or rule is a just and fair doctrine. But like many laws this rule needs some
changes. The writer believes that the eggshell skull rule should be applied in situations when the preexisting condition of the plaintiff is not plaintiff's own fault. For example : If a man named Zaheer is
driving a car while texting and due to his negligence he hits an old person named Smith and Smith
suffers from fractured arm and legs owing to the accident.
If a healthy person was hit, that person wouldn't have sustained any injuries as the speed of car was
very low but since Smith was an old man and his bones had become very weak due to old age, he
suffered fractures. In this case the plaintiff's pre-existing condition wasn't his fault and hence, the
defendant must be liable for the full extent of damage. In this case the plaintiff should be an eggshell
skull plaintiff. Consider another situation, October 10th,2017, a man named Messi was driving a car
and was over speeding and due to his negligence he rammed his car into a tree, resulting in a severe
injury in his right arm and rib cage.
After almost a month of this accident, on 9th November, 2017, Messi got into a scuffle with a man
named Ronaldo and during this fight Ronaldo punched Messi on his rib cage, resulting in fracture of
his rib cage. A healthy person whose rib cage was in a normal condition wouldn't have sustained any
injuries. But since Messi had met with an accident some days back his ribcage broke. According to
the current eggshell skull rule Ronaldo will liable for the full extent of damages.
The change I want to propose in the current rule is that Ronaldo should be held liable but not for the
full extent of the damages as Messi's pre-existing condition was due to his own fault. The eggshell
skull should be upheld even in cases where the condition of the plaintiff is a genetic problem or a
disease. It will be on the discretion of the courts to decide after hearing the facts of the previous
accident which caused the pre-existing injury and critically analyse the situation to determine whether
the pre-existing injury was caused due to plaintiff's own fault or not.
This procedure might be a little complicated but is certainly better than serving injustice. The
crumbling skull rule also contributes in maintaining the fairness of the eggshell skull rule. The victim
isn't unjustly enriched, if his/her situation was anyway going to deteriorate if the accident didn't take
place. We live in a world surrounded by people. It's the responsibility of every individual to go about
living their life in a rational and a justifiable manner.
MVA
1. Do you agree that the new amendments brought in the Motor Vehicles Act 2019
will discourage people from committing traffic offences and improve road safety?
Substantiate your answer with suitable examples and cases.
2. Leonard is a doctor at St. John’s Hospital. After receiving a call from the hospital
about an emergency case, he immediately drove to the hospital in his car. While
driving, his phone rang again. Assuming it to be a call from the hospital, he
decided to take it. While doing so, he hit Joanna, a pedestrian, causing her grievous
injury. Advise Joanna on the remedy available to her under the Motor Vehicles
(Amendment) Act, 2019. X 2
3. The Motor Vehicles Amendment Act 2019 has introduced a new section 134 A,
named ‘Protection of Good Samaritan’. Critically analyze the above provision and
elucidate how it will be beneficial for the protection of accident victims. Road
safety has been brought on the global agenda in consonance with the United
Nations goal set under the UN Decade of Action of reducing road crashes by 2030.
X2
4. How the recent amendments do to the Motor Vehicles Act brought about in 2019
address the road safety issues in India? Also elucidate on what have been the
challenges in the implementation of the amended Act.
5. The UN Road Safety Strategy is based on a “safe-system approach” that manages
the interaction between speed, vehicles, road infrastructure, and road-user
behavior to prevent crashes from resulting in deaths and serious human injury
and is closely aligned to the SDG goal 3.6 on halving the number of global deaths
and injuries from road traffic accidents; and SDG target 11.2 on providing access
to safe, affordable, accessible and sustainable transport systems as well as improve
road safety for all. To what extent has the recently amended Motor Vehicles Act
2019 achieved the above goals?
6. 3rd party insurance
7. Hit and run under Motor Vehicles Act x 4
8. Provision inserted to deter juveniles from falling victim to road accidents
9. No fault liability.x 7
10. Liability of insurance company
11. Mva welfare legislation pov of victims. X 3
12. Development and amendments x 2
13. Compensation
14. Motor vehicle amendment bill
15. Role/ contribution of supreme court in making act more effective x 4