Law of Torts - I : Previous Year Questions (2016)

Answer the following questions in one sentence each. (10 x 1 = 10)

Q1. Define Tort according to Salmond?

Ans. According to Salmond, “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or breach of trust, or merely equitable obligation.”

Q2. What is legal right?

Ans. A legal right is an interest or benefit recognised and protected by law, allowing a person to demand something or prevent others from interfering with it.

In simpler terms, it is a power or a privilege that a person has, which, if violated by another, gives the injured person the right to seek a remedy in court.

Q3. What is the meaning of 'Injuria', 'Sine' and damnum?

Ans.

1. Injuria – a legal injury or violation of a legal right.
2. Sine – means “without.”
3. Damnum – actual loss or damage.

These terms are famously combined in two important legal maxims:

1. Injuria Sine Damno: Legal injury without actual damage. (This is generally actionable in tort, as the right itself was violated).
2. Damnum Sine Injuria: Actual damage without legal injury. (This is generally not actionable in tort, as no legal right was violated).

Q4. "Salus Populi Suprema Lex" means?

Ans. “Salus Populi Suprema Lex” means the welfare of the people is the highest law.

Q5. "UBI JUS IBI REMEDIAN" means?

Ans. “UBI JUS IBI REMEDIUM”, means “Where there is a Right, there is a Remedy”. Law of Tort is developed on this maxim.

Q6. Define "Inevitable Accident".

Ans. Accident means an unexpected injury and if the same could not have been foreseen and avoided, in spite of reasonable care on the part of the defendant, it is inevitable accident. Inevitable accident says that a person cannot be held liable for an accident which was not foreseeable despite all care and caution taken from his side.

Q7. What is the meaning of contemptuous damages?

Contemptuous damages are a nominal amount of money awarded to a successful claimant in a court case where, although they have technically proven their legal rights were infringed, the judge or jury feels their claim was trivial, unnecessary, or morally undeserving of substantial compensation.

Essentially, the court gives the claimant a token victory but simultaneously expresses its contempt (disapproval) for having wasted judicial time on the matter.

Q8. Define "Rolled up plea".

Ans. In a defamatory suit, the defendant contends that his statements are true in substance and in fact, and in so far as they consist of expression of opinion. They are expressed in good faith and without malice for public interest. Such plea is called ‘Rolled up plea’.

Q9. What do you understand by 'Malice in fact?

Ans. 'Malice in fact' is a term used to describe the defendant's actual wicked or improper motive when committing an act.

In simple terms, it means the person acted out of spite, ill-will, or a desire to injure the claimant, rather than pursuing a legitimate goal.

Q10. Define "Assault'.

Ans. It is an act by the defendant causing reasonable apprehension in the plaintiff of an imminent battery.

It is also essential that there should be prima facie ability to do the harm. Mere verbal threat is no assault. When the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff, the wrong of assault is completed.

PART – B

Answer the following questions in 4-5 lines each. Each question carries 4 marks. (4 x 4 = 16)

Q11. State the principles on which vicarious liability is based?

Ans. The principles on which vicarious liability is based are:

1. Respondeat Superior – Let the principal be liable.

2. Qui Facit Alium Facit Per Se – One who acts through another, is deemed to have done himself.

3. Power of Selection – One of the justification for master’s liability is that the master can exercise care in selecting the efficient and competent hands. If he selects any incompetent person, he must suffer for his neglect of duty.

4. Power of Control – Vicarious Liability is more often justified on the basis of control. This in fact, is the most effective test of master’s liability. He can punish the servant or remove him from service if he proves to be incompetent. The master has opportunity in most of the cases to control the manner of the work done by the servants and at least he has a right to control his activities.

5. Beneficiary of Service – The liability is also justified on the ground that the master takes the benefit of the service of hi servant and therefore the losses should also be beard by the master.

6. Capacity to Pay – Servants are usually financially incapable to pay the compensation to the injured party whereas the master usually is.

7. Distribution of Loss – Imposition of liability on the master for the tort of his servant also helps in spreading over the loss and in distributing it among the beneficiaries of the activity.

Q12. Explain the limitations to the rule of ‘Res Ipsa Loquitor’.

Ans. The limitations to res ipsa loquitur include situations where the injury could have multiple plausible causes, the plaintiff's own negligence contributed to the harm, the defendant lacked exclusive control over the instrumentality that caused the injury, or direct evidence of negligence is readily available. The doctrine can also be limited in medical malpractice cases where the injury is a known or accepted risk of treatment despite the physician's adherence to the standard of care. 

When the doctrine does not apply:

1. Multiple possible causes: Res ipsa loquitur is inapplicable if the accident could have been caused by something other than the defendant's negligence.
2. Plaintiff's own fault: The doctrine does not apply if the plaintiff's own actions contributed to the injury.
3. Lack of exclusive control: The instrumentality causing the injury must have been under the defendant's exclusive control. If others could have been responsible or if the plaintiff's own actions led to the situation, the doctrine is limited.
4. Direct evidence of negligence exists: The doctrine is generally used when direct evidence is unavailable. If there is sufficient direct evidence of negligence, the plaintiff may not need to rely on this principle.
5. Injury is an accepted risk of treatment: In medical cases, if an injury is a known and accepted risk of a medical procedure, and the physician met the standard of care, the doctrine may not apply. 

Q13. Distinction between public and private nuisance.

Ans.

In conclusion,

1. Private Nuisance is about protecting your private property rights against an interfering neighbour. If your neighbour's dog barks every night, it's a private nuisance.

1. Public Nuisance is about protecting the collective rights of the community. If a factory's noxious fumes affect the air quality of an entire town, it's a public nuisance (and potentially a private one for those living right next to it who suffer special damage).

Q14. State the condition of liability in an action for malicious prosecution.

Ans. In an action for malicious prosecution, the following essentials have to be proved by the defendant:

1. That he was prosecuted by the defendant.
2. The prosecution was instituted without any reasonable and probable cause.
3. The defendants acted maliciously and not with a mere intent of carrying the law into effect.
4. The proceedings complained of, terminated in the favour of present plaintiff.
5. The plaintiff suffered damage as a result of prosecution.

PART – C

Answer the following questions in 400 words each. Attempt any three. Each question carries 8 marks. (3 x 8 = 24)

Q15. Explain the doctrine of contributory negligence and discuss in detail the various principles governing this doctrine.

Ans. When the plaintiff by his own lack of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence.

Relevant Case Laws:

Here are some relevant case laws with respect to Contributory Negligence:

1. Davies v. Swan Motor Co. Ltd. (1949) – In this case, an employee of Swansea Corporation, in contravention of the regulations, was riding on the steps attached to the offside of the dust lorry. There was a collision when an omnibus tried to overtake the dust lorry. In consequence, the employee standing on the steps of the lorry was hit, seriously injured and ultimately died. It was held that although there was negligence on the part of the driver of the omnibus, there was also contributory negligence on the part of the deceased.

1. Sushma Mitra v. Madhya Pradesh State Road Transport Corporation (1974) – In this case, the plaintiff was travelling in a bus resting her elbow on a window sill. The bus at that time was moving on a highway. She was injured when hit by a truck which was coming from the opposite direction. When sued for the injury, the defendant took the plea that the act of resting elbow on a window sill was an act of contributory negligence. The Madhya Pradesh High Court did not allow this defence. It was held that she acted like a reasonable passenger while the bus was moving on the highway, she was entitled to claim compensation.

The Last Opportunity Rule

According to this rule, if two persons are negligent, then one of them who had the later opportunity of avoiding the accident by taking reasonable care should be liable for the loss. It means that if the defendant is negligent and the plaintiff having a later opportunity to avoid the consequences of the negligence of the defendant does not observe ordinary care, he cannot make the defendant liable for that. Similarly, if the last opportunity to avoid the accident is with the defendant, he will be liable for the whole of the loss to the plaintiff.

Relevant Case Law:

Here is a relevant case law with respect to the last opportunity rule:

1. Davies v. Mann (1882) – In this case, the plaintiff fettered the forefeet of his donkey and left it on a narrow highway. The defendant was driving his wagon driven by horses too fast that it negligently ran over and killed the donkey. In spite of his own negligence, the plaintiff was held entitled to recover because the defendant had the ‘last opportunity’ to avoid the accident.

Rules to determine Contributory Negligence:

The Contributory Negligence Act prescribes the rule when there is contributory negligence on the part of the plaintiff. Whether there is contributory negligence or not has to be determined by the following rules:

1. Negligence of the plaintiff in relation to the defence of contributory negligence does not have the same meaning as is assigned to it as a tort of negligence. Here the plaintiff need not necessarily owe a duty of care to the other party. What has to be proved is that the plaintiff did not take due care of his own safety and thus contributed to his own damage.

Relevant Case Law:

Here is a relevant case law with respect to rule number one:

1. Bhagwat Sarup v. Himalaya Gas Co. (1985) – In this case, the defendant company sent its deliveryman to deliver the replacement of a gas cylinder to the plaintiff at his residence. The cap of the cylinder was defective. The deliveryman obtained an axe from the plaintiff for opening the cylinder and hammered the axe with the cap. The gas leaked from there and caused fire resulting in the death of the plaintiff’s daughter, injuries to some other family members and damage to his property. It was held that there was sole negligence of the deliveryman. It was also observed that the mere fact that the plaintiff gave an axe/hammer to the deliveryman on asking did not imply contributory negligence on the part of the plaintiff, because the plaintiff was a layman but the deliveryman was a trained person and was supposed to know the implications of the act being done by him.

2. It is not enough to show that the plaintiff did not take due care of his own safety. It has also to be proved that it is his lack of care which contributed to the resulting damage. If the defendant’s negligence would have caused the same damage even if the plaintiff had been careful and plaintiff’s negligence is not the operative cause of accident, the defence of contributory negligence cannot be pleaded.

Relevant Case Law:

Here is a relevant case law with respect to rule number two:

1. Agya Kaur v. Pepsu Road Transport Corporation (1980) – In this case, an overloaded rickshaw with three adults and a child on it, while being driven on the correct side of the road, was hit by a bus being driven at a high speed and also coming on the wrong side. It was held that there was negligence on the part of the bus driver only, and in spite of the fact that the rickshaw was overloaded, there was no contributory negligence on the part of the rickshaw driver, as the fact of overloading of the rickshaw did not contribute to the occurrence of the accident.

Q16. How far the state is liable for the torts of its employees? Discuss with latest cases.

Ans. Vicarious Liability of the State is based on the legal maxim: “Rex Non-Potest Peccare”, which means “The King can do no Wrong”.

Position in India

The State (Union or State Government) can be held vicariously liable for the tortious acts of its servants committed in the course of their employment, subject to a historical distinction.

The legal basis for suing the State in India is found in Article 300 of the Constitution of India, which states:

1. The Government of India or the Government of a State may sue or be sued in relation to their respective affairs.
2. The liability of the Union or a State is to be the same as that of the Dominion of India and the corresponding Provinces/Indian States immediately before the commencement of the Constitution.

The Doctrine of Sovereign Immunity and its Limitations:

A. Historical Benchmark: Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1861):

This landmark case established the initial test for State liability in India:

1. Sovereign Functions: If the act causing the injury was committed in the exercise of sovereign power (acts that cannot be delegated to a private person, e.g., maintenance of the army, police, administration of justice, making war/peace), the State would not be liable.

2. Non-Sovereign (or Commercial) Functions: If the act was committed in the course of non-sovereign (or commercial/private) functions (e.g., maintaining docks, railway, government factories), the State would be liable, just like any other employer.

B. Judicial Evolution and Narrowing the Unity:

The Courts, recognizing the welfare nature of the modern state, began to narrow the scope of 'sovereign functions' and expand State liability.

1. Immunity Discarded for Non-Sovereign Functions

1. State of Rajasthan v. Vidyawati (1962): The Supreme Court held the State liable for the negligence of a government driver while driving a government jeep for official purposes. The function (maintenance of a jeep for a public servant's use) was clearly non-sovereign. The court advocated for the removal of the distinction, stating that the law should be on par with England, where Crown immunity was largely abolished.

2. Immunity Maintained for Strictly Sovereign Functions

1. Kasturi Lal Ralia Ram Jain v. State of U.P. (1965): This decision reaffirmed the P&O Steam Navigation rule and granted immunity. In this case, gold was seized by the police (a sovereign act—administration of justice/maintenance of law and order) and later misappropriated by a police official. The SC held that since the tort was committed by a servant while performing a duty that was directly a part of the sovereign function of the State, the State was not vicariously liable. This case became the leading authority for the rule of immunity for truly sovereign functions.

The Post-Kasturi Lal Shift: The Constitutional Tort Approach:

Following the criticism of Kasturi Lal, the Supreme Court started evolving a new jurisprudence, linking State liability to the violation of fundamental rights and adopting the concept of Constitutional Tort.

A. Distinction Diluted and Compensation Under Public Law

In cases involving the violation of fundamental rights, especially under Article 21 (Right to Life and Personal Liberty), the courts bypassed the sovereign/non-sovereign distinction to grant monetary compensation using their powers under Article 32 (SC) and Article 226 (High Courts).

Relevant Case Laws:

1. Rudal Shah v. State of Bihar (1983): The SC ordered compensation for illegal detention after acquittal, marking the beginning of the "Constitutional Tort" remedy for violation of fundamental rights.

1. Nilabati Behera v. State of Orissa (1993): The SC explicitly held the State strictly liable for the custodial death of a person. It distinguished this from the common law action in torts (Kasturi Lal), calling it a public law remedy for the violation of fundamental rights. It stated that the defence of sovereign immunity is not available where fundamental rights are breached.

B. Current Position and Decline of Sovereign Immunity

The Supreme Court has effectively limited the application of the Kasturi Lal principle to purely theoretical or military operations, expanding State liability in almost all other areas.

Some important case laws with respect to Vicarious Liability of the State are as follows:

1. State of Andhra Pradesh v. Challa Ramakrishna Reddy (2000): The court held that the doctrine of sovereign immunity has no relevance in the context of the fundamental rights of a citizen and the State is liable to pay compensation for the negligence of its officers, including police and jail authorities.

1. N. Nagendra Rao & Co. v. State of A.P. (1994): The SC criticized the rigid application of sovereign immunity, stating that the concept has no place in a modern welfare state. It held the State liable for the loss of goods seized and kept in custody under the Essential Commodities Act.

1. S. R. Ramalingam v. State of Tamil Nadu (2018): The Madras High Court upheld the State's vicarious liability for the negligence of government employees in maintaining safety standards, leading to a loss of life.

The current trend in India is towards abolishing the distinction between sovereign and non-sovereign functions for the purpose of granting relief to the citizen, especially when the tort involves the violation of a fundamental right. The judiciary has extensively used the public law remedy to ensure State accountability and uphold the rule of law in a welfare state.

Q17. The rule of strict liability in the case of Rylands Vs. Fletcher has been converted into the absolute liability in India. Comment.

Ans. The conversion of the rule was primarily carried out by the Supreme Court of India in the case of M.C. Mehta v. Union of India (1987), also known as the Oleum Gas Leak Case. The Court deliberately moved away from the 19th-century English rule to create a more robust standard of accountability for modern, large-scale industrial activities.

The Rule in Rylands v. Fletcher (Strict Liability)

The English rule states that a person who, for their own purposes, brings onto their land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at their peril. If it escapes and causes damage, they are prima facie liable.

The key condition that made this "Strict" rather than "Absolute" was the availability of several defences/exceptions. The defendant could escape liability by proving:

1. The escape was due to the Act of God (Vis Major).
2. The escape was caused by the Act of a Stranger.
3. The thing escaped by the Plaintiff's own default.
4. The thing was accumulated by Statutory Authority.
5. The plaintiff consented to the accumulation.

The Rule in M.C. Mehta v. Union of India (Absolute Liability)

In M.C. Mehta v. Union of India (1987), the Supreme Court was dealing with claims arising from the leakage of Oleum Gas on 4^th and 6^th December, 1985, from one of the units of Shriram Foods and Fertilizers Industries, in the city of Delhi, belonging to Delhi Cloth Mills Ltd. As a consequence of this leakage, it was alleged that one advocate practicing in the Tis Hazari Court had died and several others were affected by the same.

The action was brought through a writ petition under Article 32 of the Constitution by the way of Public Interest Litigation (PIL). The court had in mind that within a period of one year, this was a second case of large scale leakage of deadly gas India, as a year earlier due to the leakage of MIC Gas from the Union Carbide plant in Bhopal, more than 3,000 persons had died and lacs of others were subjected to serious diseases of various kinds.

If the rule of strict liability laid down in Rylands v. Fletcher was applied to such like situations, then those who had established ‘hazardous and inherently dangerous’ industries in and around thickly populated areas could escape the liability for the havoc caused thereby by pleading some exception to the rule in Rylands v. Fletcher.

The Supreme Court took a bold decision holding that it was not bound to follow the 19^th century rule of English Law, and it could evolve a rule suitable to the social and economic conditions prevailing in India at the present day. It evolved the rule of ‘Absolute Liability’ as part of Indian Law in preference to the rule of strict liability. It expressly declared that the new rule was not subject to any of the exceptions under the rule of strict liability.

Conclusion

The shift from Strict to Absolute Liability reflects the Indian judiciary's activist approach under Article 21 (Right to Life) of the Constitution. The Court recognised that 19th-century English law could not effectively address the immense risks posed by modern industrial operations. By removing all exceptions, the Supreme Court placed the entire cost of the accident on the enterprise that profits from the hazardous activity, ensuring stronger public safety and greater compensation for victims. It is a powerful example of the law evolving to meet the needs of the time.

Q18. In Wagon Mound and Re Polemis cases the tests for remoteness of damages were clearly established. What test according to you is most appropriate?

Ans. The cases of Re Polemis and The Wagon Mound represent two very different approaches to determining how far a defendant’s liability should extend.

In Re Polemis, the court applied the “direct consequence” test. According to this view, once the defendant’s negligent act has directly caused the damage, the defendant is liable even if the exact type or extent of damage was unforeseeable. This approach is very strict. It focuses on the chain of causation rather than on what a reasonable person could have predicted. While this ensures wide protection for victims, it may unfairly burden defendants by making them liable for highly unusual or unexpected outcomes.

On the other hand, The Wagon Mound introduced the “reasonable foreseeability” test, which has become more widely accepted. Under this test, the defendant is liable only for those kinds of damages that a reasonable person could foresee as a probable result of their negligence. This approach is more balanced because it ties liability to human foresight. It reflects the idea that people should only be held responsible for risks that they could realistically anticipate.

My Assessment: Why Foreseeability is More Appropriate

In my view, the test established in The Wagon Mound: The Reasonable Foreseeability Test, is the most appropriate for determining remoteness in the tort of negligence. It represents a more just and pragmatic approach to allocating liability in modern society.

1. Alignment with Fault Principle

Tort law, particularly negligence, is based on the fault principle. You are held responsible because you failed to take reasonable care when you ought to have foreseen the risk of harm.

1. The Direct Consequence Test from Re Polemis contradicted this by holding a defendant liable for a loss they could never have anticipated. It essentially punished them for the extent of the harm, not the nature of their fault.
2. The Reasonable Foreseeability Test ensures that the scope of liability matches the scope of the duty of care. If a reasonable person couldn't foresee the type of harm, they can't be expected to take steps to prevent it. It links the penalty to the degree of culpability.

2. Promoting Fairness and Practicality

The Re Polemis test led to potentially crushing and disproportionate liability for a defendant. If a minor negligent act (like dropping a plank) led directly to an unforeseeable catastrophic event (like a fire that destroys a ship), the defendant would bear the entire loss.

The Foreseeability Test draws a practical line, preventing an "infinite" chain of causation. It introduces an element of fairness and insurability by limiting liability to risks that an ordinary, prudent person would guard against. As Viscount Simonds famously said in The Wagon Mound, it is not "consonant with current ideas of justice or morality" to hold a person liable for consequences that no reasonable person would have anticipated.

3. Judicial Flexibility (The 'Kind of Harm' Rule)

Crucially, the modern application of the foreseeability test is not unduly rigid, thanks to the 'kind of harm' rule. The courts have been flexible:

1. You don't need to foresee the extent of the damage (The "Eggshell Skull" Rule): If the type of injury is foreseeable, the defendant is liable for its full, unexpected severity due to the victim's existing condition (e.g., Smith v Leech Brain & Co).
2. You don't need to foresee the exact manner of the damage: As long as the type of harm is foreseeable, the defendant is liable even if it occurred in an unusual way (e.g., Hughes v Lord Advocate).

This flexibility ensures that while liability is limited to foreseeable risks, it remains robust enough to protect claimants who suffer severe but factually connected losses, striking a much better balance than the previous "all or nothing" approach.

Conclusion

While Re Polemis protected victims by allowing broad recovery, it lacked fairness and proportionality. In contrast, The Wagon Mound’s foreseeability test offers a more rational and balanced method. It ensures that defendants are liable for the harm they could realistically foresee, but not for extraordinary or remote consequences.

Therefore, the foreseeability test is the more appropriate and widely accepted standard for determining remoteness of damage in modern tort law.