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5. Torts > Intro > Flashcards

Intro Flashcards

1
Q

What is tort

A

Salmond defines tort as a civil wrong for which remedy is an action for unliquidated damages and which is other than BOC or bot

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2
Q

Introduction for damnum sine injuria vs injuria sine damnum

A
  1. Injuria is infringement of legal right of the plaintiff by unauthorized intereference. Damnum is sustainable damage or loss to money health
  2. Law concerned only with legal injury and not several forms of harm
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3
Q

Damnum sine injuria

A
  1. Subtantial loss of.. Without any infringement of legal right
  2. Most terrible harm can be inflicted without legal redress
  3. Gen principle - excercise of a man his rights within legal contours not actionable merely bciz it cause loss to some other
  4. Rationale - in civilized society no one can.. Without occasionally causing CoI

Gloucester Grammar school case
Bonafide competition is DSI

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4
Q

Injuria sine damnum

A
  1. Whenever invasion of legal right, bring an action to recover damages
  2. No need of actual loss
  3. Assault, battery, tresspass

Ashby vs white - wrongfully didn’t allow the plaintiff to vote. Vilotaion of statutory right
Tozer vs child – returning officer acted without malice

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5
Q

What are the essentials of a tort

A
  1. Act or omission - must be one recognized by law. Not a moral or social wrong. Starving child, drowning man.. Unless legal duty to save
  2. Injuria sine damnum
  3. Ubi jus ibi remedium - when there is a wrong there should be legal remedy. Otherwise vain to have a right without a remedy. Doent mean every wrong ( moral, social etc) have a legal remedy. As justice Stephen remarked - Aptly restated as where there is no legal remedy there is no legal wrong
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6
Q

Diffeentiate between tort and crime

A
  1. Nature of wrong - pvt vs public
  2. Remedy - damages vs punishment
  3. Procedures - civil court, civil procedure
  4. compromise- can vs only in compundable crimes
  5. Suit brought by plaintiff vs brought by state
  6. Uncodified vs codified

Similarities

  1. Right in rem
  2. Right fixed by law irrespective of the consent of the parties
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7
Q

Tort vs breach of contract

A
  1. Nature of right- rem vs personam
  2. Duty- fixed by law and owe to the society vs fixed by the consent and privity
  3. Consent - by law vs found on consent
  4. Unliquidated vs liquidated
  5. May be held liable for damages arising out of special circumstances which he had no knowledge of vs
  6. Limitation period - day of damage suffered vs date of breach

Similarities

  1. Pvt rights
  2. Action by injured parties
  3. Damages
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8
Q

Tort vs breach of trust

A

In Bot loss can be ascertained

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9
Q

Tort vs quasi contract

A
  1. Damages - unliquidated vs GENERALLY LIQUIDATED
  2. Duty is towards the world at large vs duty is always towards a particular person

Similarities- both - duty imposed by law

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10
Q

Salmonds pegion hole theory

A
  1. Law of torts
  2. No general principle of liability
  3. If the plaintiff can place his wrong in any of the pegion holes each containig a labelled tory then..
    4 . sir fedrick pollock

If accepted - halt

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11
Q

Winfields unity theory

A
  1. Law of tort
  2. Upholds the principle of UBI JUS IBI REMEDIUM
  3. all unjustifiable harm is tortous
  4. Bop - defendent
  5. Widely used by courts
  6. General accceptance
  7. Absolute liability, strict liability, cybber tort could be developed
  8. Jayalakshmi salt work vs state of gujrat - it would be primitive to strictly classify or close the ever expanding horizon of totuous liablity
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12
Q

Introduction of strict and absolute liablity

A

All tortuous liablity arises out of act or omission which causes legal damage.
But in case of no fault laiblity - liable even if the defendant is not at fault, not negligent or doesn’t cause any harm intentionally

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13
Q

Strict liablity

A

Rationale - if a person uses his land for unnatural activity, foreseeable risk inherent in the nature of activities

Rylands vs Fletcher, blackburn J

  1. Dangerous thing bought by person to his land
  2. Unnatural use of land
  3. Escape
  4. Cause damage to the palintiff

Crowhurst vs American burial board

  1. Posionous tree
  2. Land
  3. Leaves projecting to plaintiffs land
  4. Horse poisoned
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14
Q

Different between absolute liablity and SL

A
  1. SL - non natural use of land and escape ( rylands vs fletcher)
    AL- high risk industry in Indian case (mc mehta)
  2. SL - Exceptioms
  3. SL- do not cover harm of person within the premise.
    Al - no such distinction
  4. Compensatory damages vs exemplary damages
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15
Q

Special characteristics of absolute liablity.

A
  1. Extreme or rare cases
  2. Large number of people are affected
  3. Supreme court
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16
Q

Escape of animals

A
  1. Scienter rule - manusuetae nature ( need to prove viscious propensity and that the owner was aware), ferare nature ( elephant in circus)
  2. Cattle trsspass- strict laiblity. No need to prove vicious propensity or owners knowledge
  3. Ordinary liablity in tort - eg: keeping a dog whvh causes unreasonable influence with neighbours enjoyment of his property- nuisance
17
Q

Jurisprudence of vicarious liablity

A
  1. Respondeat superior – legal presumption of masters impleid/express authority for the acts done by servant – difficulty in proving actual authority, deep pockets
  2. Qu facit per alium facit per se - he who does an act through another is deemed in law to do it himself
18
Q

8 rules of vicarious liablity

A
  1. Master liable for the acts if the servant in 2 ways - all acts authorized by him, if unauthorized and subsequently authorized
  2. Even when against express instructions for no benifit of the master. Ex : authorizes to drive, drives negligently, laible
  3. Even if unauthorized, done in course of employment
  4. For torts beyond scope of employment- only if expresslt authorized or subsequently ratified
  5. Not only liable for wrongful act of servant, but also for the acts done negligently, intentionally, fraudulently, wilfully ( fnw)
  6. If the servant negligently delegates his authority - still the master will be held liable
    RICKETS vs THOMAS TILLING - driver allowed the conductor to drive the bus
  7. Lends his servnt to another - actual control with whom
    MERSEY DOCK vs COGGINS - with the general employer
  8. Not liable if
    - compeled by law to employ
    - head of govt - not liable for the tort committed by employee of govt
    - doctrine of commmon servants- not liable for negligent act done by one servant to another in course of employment
19
Q

Vicarious liablity of master - wwongful acts done carefully and bonefidely but also negligently, willfully and fraudulently. Cases

A
  1. Fraudulently- lloyd vs grace Smith - managing clerk of a solicitor firm - fraudulently induced a client to tranfer her 2 properties. Absconded with the money.
  2. Negligently - RADLEY vs LONDON PASSENGER BOARD – infant traveller upper deck of omnibus– tree branch - galss splintet - eye- tree visible in broad daylight - bus company liable
  3. Wilfully –; peterson vs ROYAL OAK HOTEL – intoxicated customer flunk glass
20
Q

General rule is that a person employing a independent contractor is not liable for the contractors wrongful act. What are the 5 exceptions to this

A
  1. When the act contracted for is itself unalwful
    Illustration- gas company held liable for negligence of a contractor cobtracyed to lay down gas pipeline. Not authorized to interfere with the streets

2 . Employer retains control - GRAVEL CASE - proceeds to cart away gravel

  1. Legal duty - statutory duty - then no escape
  2. Known that damage to others unless proper precuation taken , then liable if contrcator fails to take such means. To build highway – Heap of stones unlighted and unfenced
  3. Rylands vs fletcher rule -
21
Q

Vicarious liablity of firm and it’s partner

A
  1. Same as that of principal and agent
  2. In ordinary course of partnership business
  3. Acting within the scope of authority

All partners equally liable

Illustration- a partner bribed the clerknof paintff to convey some business secrets. Held that the firm was liable

22
Q

What are the remedies available for tort

A
  1. Damage
    A. Contemptous damage - technically legal wrong but court feels that no action should be brought ( Ill example - A’s dog enter B’s home and relieves himself. B steps on to it and annoyed , court ruled in B s favour but damage awarded meagre because of trivial nature)
    B. Nominal damages - not comoensation but recognition of a legal right ( ex: ashby vs white )
    C. Compensatory damage - fair and equitable compensation for the injury suffered by him ( a takes b bike and damages it by rash driving. Substantial damage so that bike can be restored back to original condition)
    D aggravated damage - for pain and agony suffered

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.

E. Exemplary - 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.

Objective is to make a public example and prevent others from emulating it

F. Prospective damages - damages provided for potential injury in the form of pecuniary or non pecuniary losses

  1. Injuction- temporary, perpetual, prohibitory, mandatory
  2. Restitution of property -
4  extra judicial remedies 
A  self help
B. Reentry 
C. Expulsion of tresspasser
D. Reception of goods
E. Abatement of nuisance
23
Q

How to decide the quantum of damages to be awarded for a tort

A
  1. Consequences of a wrongful act can be endless. Cannot be held Ad infinitum. Only for those which are not remote
  2. Test of reasonable foresight– RIGBY vs HEWITT - if the consequences of act can be foreseen by a reasonable man, then not remote

3 test of RF was rejected and test of DIRECTNESS was adopted in the RE POLEMIS CASE - defendants chartered a ship. Benzene. Negligence of servants collected in hold. Eventually caught fire.

Anything which directly follow a wrongful act cannot be remote.
The owners of the ship entitled to recover damage

  1. Wagon mound case rejected the test of directness. Ship chartered. 600 ft away a wharf. Oil leak into water. Spread. Nearly 3 days later molten metal from wharf fell into the floating cotton waste. Huge fire.

Found that defendants cannot reasonably foresee that the oil so spilt could catch fire.

24
Q

6 exceptions of strict liability

A
  1. Default of plaintiff
  2. Act of god
  3. Consent
  4. Common benefit
  5. Act of stranger or 3rd party
  6. statutory authority
25
Q

Note on absolute liability

A

Ryland vs fletcher, 19th century , S&T progressed, new rules for the highly industrialised economy

Overcome the exceptions of SL, Mc Mehta vs UOI ( oleum gas leak case ) - absolute liability.

1, when am industry is engaged in hazardous - non delegable and absolute duty to ensure that no harm ensues. Cannot avoid liability by pleading that it was not negligent
2. Beneficiaries of profits arising out of hazardous activity - duty to compensate
3. The enterprise alone has the resources to discover, guard against and inform others regarding harms

26
Q

What are the cases when master not held liable for the act of servant

A
  1. Beyond the course of his employment ( unless authorised or subsequently ratified )
    Ex: BEARD vs LONDON OMNIBUS - driver dinner, conductor drove in his absence, negligent accident, owner not liable
  2. Compelled by law
  3. Gov
  4. Doctrine of common employment or fellow servants rule
27
Q

Lift to third party. Owners liablity

A

Conway vs George- giving lift is outside the course of employment. Trespassers in relation to the vehicles owner,Owner not liable

MARIYAM JUSAB vs HEMATLAL- absence of EXPRESS PROHIBITION

PIRTHI SINGH vs BINDA RAM - if in the COURSE of employment, even if against express prohibition of master,, master liable

28
Q

Who is a servant ? 3 test

A

Person employed by another to do work under his direction and control

  1. Control test
  2. Contract of service
  3. Hire and fire test - in position to hire and fire acc to his comfortability
29
Q

Point of distinction between servant and independent contractor

A
  1. Defn - contract of service vs contract for service
  2. Control of master
  3. Instruction- not only what but also how vs master of his own methods
  4. Liablity of master
  5. Example - car driver vs hire taxi

5. Torts (13 decks)

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