LAW OF TORTS IN INDIA PDF
Abstract: The law of torts or civil wrongs in India is thus almost wholly the English law which is administered as rules of justice, equity and good conscience. This paper can be downloaded in PDF format from IELRC's website at edent in Nilabati Behera1 has profoundly influenced the direction tort law has taken in. Reception of law of torts in India. After English traders set foot on Indian soil they were authorized to exercise judicial powers to govern their servants, i.e.
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law of torts these notes are prepared by radhika seth, law centre this is meant only for personal use of students. it is not meant for public or wholesale. between all true followers of the Common Law here and on your book is to show tha_ there really is a Law of Torts, not merely a .. Indian Act XVIII. of Law of Torts - LLB - ppti.info - Download as PDF File .pdf), Text File .txt) or com powers Engineers, Doctors, Managers & Lawyers in India by providing 'free'.
And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant. But the force employed must not be out of proportion to the apparent urgency of the occasion. Thus it is not justifiable to use a deadly weapon to repel a push or blow with the hand. Indian Penal Code extends the benefit of this defence even in case of causing death in certain circumstances. In India the right of private defence has been given a statutory recognition in Sections 96 to of the Indian Penal Code.
Though provisions of these sections are applicable to the criminal law, the principles contained therein may profitably be imported into the Law of Torts. He is to use only necessary force or not to use force in excess of what is necessary.
They are unlawful even if the parties may have consented. It was pointed out in Verses Donovan, that no person zcan license another to commit a crime. Thus, it is no answer to claim made by a workman against his employer for injury caused through a breach by the employer of a duty imposed on him by statute Wheeler Verses Mertor Board MillsLimited, Bradley Verses Earl Granville.
When a prisoner with known suicidal tendencies committed suicide while in the police custody as the police failed to take reasonable precautions for preventing suicide, the defence of the maxim could not be available to the police. In order to cover a case of negligence the defence on the basis of the maxim must be based on implied agreement.
But when the plaintiff has no choice or when the notice is given at a stage when it is beyond the ability of the plaintiff to make a choice, there can be no implied agreement[Burnelt Verses British water ways Board, The defence is available only when the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk impliedly agreed to incur it and to waive any claim for injury.
Thus, there are several cases where the driver of the vehicle gives a passenger a lift and, at the same time, gives him reasonable notice that he rides at his own risk. South Indian IndustrialLimited Verses Aiamalu Animal the employer used a method of breaking up cast iron which consisted of droping a heavy weight on pieces from a great height. Consequently a piece of iron hit and killed a workman. The court held that the defence of consent was not available, It was observed that the maxim volenti nonfit injuria was not applicable.
In order to succeed under the maxim, it is necessary for the defendant to prove that the person injured knew of the danger, appreciated it and voluntarily took the risk.
That he had some knowledge of the danger is not sufficient. A man cannot voluntarily undertake a risk to the extent of which he does not appreciate, When the defendant himself pleads that he did not anticipate and could not have anticipated pieces flying over a distance of 90 feet, he cannot plead that the deceased workman could possibly have anticipated it for himself.
Rescue cases are typified by A's death or injury in rescuing or attempting to rescue B from an emergency or danger to B's life or limb created by the negligence of C. Is C liable to A? Section 2 of the Unfair Contract Terms Act, provides, 1 A person cannot by reference to any contract term or to a notice given to person generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
When a statute specially authorises a certain act to be done by a certain person which would otherwise be unlawful and actionable, no action will lie at the suit of any person for the doing of that act. Therefore, if a railway line is constructed, there may be interference with private land when the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of spark etc. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the Act itself may provided.
In Vaughan Verses Taff Valde Rail Company, sparks from an engine of the respondent's Rail Company, set fire to the appellant's woods on adjoining land. Held, that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than that the statute had authorised them to do, they were not liable.
Similarly, in Hammer Smith Rail Coch Verses Brand, the value of plaintiff's property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains. The damage being vibration and smoke caused by the running of trains. The damage being necessarily incidental to the running of the trains authorised by the statute, it was held that no action lies for the same.
However, when an act authorised by the legislature is done negligently, then an action lies. Sparks from an engine set the material on fire.
Since it was a case of negligence on the part of the Railways Coch, they were held liable. When a statute authorises the doing of an act, which would otherwise be a tort, the injured has no remedy except the one if any provided by the statute itself. The demolition of the wall also resulted in the falling of the roof of the defendant on the wall. On an action by the plaintiff for the damage to his property, it was held by the court that the defendant would not be liable. For no suit will lie on behalf of a man who sustain a private injury by the execution of powers given by a statute, these powers being exercised with judgment and caution.
But statutory powers are not charters of immunity for any injurious act done in the exercise of them. The act done in pursuance of the statutory powers must be done without negligence. If it is done negligently an action lies. A breach of any of the aforesaid duties gives a right of action for negligence to the patient.
Definition of Tort
A breach of duty is committed by a doctor when he does not perform the standard and degree of care like reasonable doctor of his time or as a member of his class. In Malay Kumar Ganguly Verses Sukumar Mukherjee, the Supreme Court held that standard of care on the part of a medical professional involve the duty to disclose to patients about risks of serious side effects of medicines or about alternative treatments.
The Court further observed that an act which may constitute negligence or even rashness under torts may not amount to same under section AofIPC.
In Gian Chand Verses Vinod Kumar Sharma, though the victim was admitted to he surgical ward she was shifted to the children ward. Due to burn injuries she could not be clothed. She should not have been exposed to the vagaries of weather. The doctor offended to the fact-that the child had been kept in his ward without his permission and forced her to leave the ward.
The doctor has riot given any explanation as to why he shifted her out. The doctor was not only negligent but also he was callous in his approach when he forced the parents to shift the child from the children ward to veranda outside in the cold rainy weather. Thus, the doctor is liable for the death of the child. The child was found profusely bleeding and with one eye totally gouged near the wash-basin of the bath room. The plaintiff contended replacement of the child whereas the hospital authorities contended that the child had been taken away by a cat which caused the damage to him.
The court presumed that the hospital authorities were negligent and awarded compensation amounting Rs. Gurgaon for sterilization which was done under the State sponsored family planning programme. She developed pregnancy after the operation and gave birth to a female child.
Thus there was additional economic burden on the poor person. The Court held that the doctor was negligent per se as he obviously failed in his duty to take care and therefore both State and doctor were held liable to pay damages to the plaintiff.
Contributory negligence is negligence in not avoiding the consequences arising from the defendant's negligence, when plaintiff has means and opportunity to do so. In fact, it is the non-exercise by the plaintiff of such ordinary care, diligence, and skill, as would have avoided the consequences of the defendant's negligence. It, therefore, means that in the case of contributory negligence both the parties plaintiff and defendant are negligent.
The much is justified in accordance with the natural justice also that where both the parties are equally negligent, neither can hold the other liable. But the question arises where both the parties arc not equally at fault then what is the criteria of holding the defendant liable?
In English Law the rule of Contributory Negligence was demonstrated for the first time in , in the case of Butterfield Verses Forrester, The facts were that the defendant for the purpose of making some repairs to his house, wrongfully obstructed a part of the highway by putting a pole across it.
The plaintiff who was riding on his horse very violently on the road in the evening j collided against the pole and injured. It was also found as a matter of fact that there I was sufficient light and the pole was visible from a distance of yards. The court I held that the plaintiff had no cause of action against the defendant as he himself could have avoided the accident by exercising due care.
Ellenborough C. One person in fault will not dispense with another's using ordinary care for himself. In such circumstances a new development took place and the court modified the law by introducing 'Last opportunity rule'. An important case of Devis Verses Mann, illustrate this rule.
The facts briefly were that the plaintiff left his donkey with its forelegs tied in a narrow public street. The defendant coming with his wagon at a smart pace negligently ran over and killed the donkey. The court held the defendant liable because he had the last opportunity to avoid the accident by the exercise of ordinary care that is, by going at such a pace as would be likely to avoid the mischief.
It was observed by the court that "although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man may justify the driving over goods left on public high way, or even over a man lying asleep there, or purposely running against a carriage going on the wrong side of the road. Essential Ingredients — Duty to Take Care Essentials of Negligence According to Winfield, in an action for negligence, the plaintiff has to prove the following essentials, 1.
That the defendant owed duty of care to the plaintiff. The defendant made a breach of that duty.
Nature And Scope of Law of Torts in India
The plaintiff suffered damage as a consequence thereof. Duty of care to the plaintiff3 The requirements for establishing a duty of care are as follows, a Duty means a legal duty. The Tort is of French origin. In England was conquered by Normans who were the French speaking people of Normandy, a region of France. The Charter that established these courts required them to adopt the English common law of torts in force at that time to their Indian jurisdiction.
Meaning of Tort: At a general level, tort is concerned with allocation of responsibility for losses, which are bound to occur in society. Tort is a branch of law governing actions for damages for injuries to private legal rights of a person, say, right to property, right to personal security, right to reputation, etc. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Duty primarily fixed by law: An essential principle of tortious liability is that the duty is always fixed by law itself and NOT by any agreement between parties. This is a duty primarily fixed by law on me. Similarly, by the same principle my neighbour cannot trespass into my property.
Any person who commits such a breach can be proceeded against in a court of law by the person whose rights are breached. Though, A has breached the duty fixed by law, his master B will become liable n an action initiated by C in court under the law of tort. Similarly he is also duty bound not to trespass into my land. This character distinguishes tort from contract, bailment and quasi-contract. Thereafter, the court decides the quantum of damages based on merits of the claim and circumstances of the case.
Other Remedies: Besides un-liquidated damages, which are usually in the form of monetary compensation, there are also other remedies available in a case of tortious liability. These are: a Injunction, b Self —help, and c Restitution of property.
There are other remedies such as self- help, injunction and specific restitution of property also available. Tort is a civil wrong. Tort belongs to the category of civil wrongs. In the case of a civil wrong, the injured party institutes civil proceedings against the wrongdoer and the remedy is damages. The injured party is compensated by the defendant for the injury caused to him by another party. Whereas, in the case of a criminal wrong, the State brings riminal proceedings against the accused, and the remedy is not compensation.
Punishment is provided to the wrongdoer. In a case where the act results in both civil as well as criminal wrong then both the civil and criminal remedies would concurrently be available 2 Tort is other than Breach of Contract or Breach of Trust: In order to determine whether the wrong is tort or not, the following steps are to be followed, a Whether the wrong is civil or criminal.
However, if the act involves two or more civil wrongs, one of which may be a tort, in such a case injured party can either claim damages under law of torts or under other breach of civil wrong for example, breach of contract, but cannot claim damages twice.
After the commission of the wrong, it is not possible to undo the harm which has already been caused but it is the monetary compensation which can be awarded to the injured party. Unliquidated damages means when the compensation has not been determined previously or agreed by the parties but it is left to the direction of the court. These are the unliquidated damages which distinguish tort from breach of contract or breach of trust in which damages may be liquidated that is, previously determined or agreed to by the parties.
Law Of Torts
According to this definition tort is a wrong but it does not explain what is wrong and what kinds of wrong explaining jural features of tort. Moreover the expression "civil wrong" itself requires explanation. While this definition is more informative, this is still far from perfect. This refers to an act of commission, or, omission that is, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do.
If there is a mere moral or social wrong, there cannot be a liability for the same.
For example, if somebody fails to help a starving man or save a drowning child. But, where legal duty to perform is involved and the same is not performed it would amount to wrongful act.
In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission by the defendant which through its breach of a legal duty led to r the violation of a legal right vested in the plaintiff. So, there must be violation of a legal right of a person and, if it is not, there can be no action under law of torts. They are those rights conferred by the State on all its citizens. There are two types of Legal rights, viz, public rights and Private rights.
Example: Public peace, Public safety etc. It can be further divided into two types, namely,. Right in Personum is a right which one person can enforce on another specific person. Example : Rights of parties to a Contract ii. Right in rem is a private right that a person is entitled to against the society as a whole, and is not limited to against any specific person. Example: Right to property, Right to reputation, Right to etc.
In some specific circumstances, there may be exceptions permissible by law such as trespassing by a police officer on duty for justifiable reasons and so on. All civil injuries are not torts. It is therefore necessary that the wrongful act must come under the category of wrongs for which the remedy is a civil action. Usually the court awards monetary compensation. Contemptuous damages or derisory damages: These damages are awarded when the plaintiff moves the court on a technical legal ground without moral justification.
The courts express their disapproval of such conduct by awarding a very low damages, of say, Rs. Nominal Damages: The damages awarded in cases where there is injury without a loss, say the act of trespassing. Here a token amount, or, nominal amount is awarded. Usually in all cases of Injuria sine damnun nominal damages are awarded. Ordinary damages or Compensatory damages: When damages are awarded to the extent of losses suffered by plaintiff, as a monetary compensation, these are called ordinary, or, compensatory damages.
While arriving at the amount of compensation, courts will regard not only the pecuniary losses suffered, but also, the social disadvantage resulting from the wrong, mental pain and suffering, etc. Aggravated Damages: The court at its discretion, tends to increase the compensation when it finds the manner of commission of tort when it is intentional, and with malice.
Such increased compensation is called aggravated damages.
However, this is not to be confused with exemplary damages. Exemplary damages or Punitive Damages: Sometimes, the gravity of offence may be so severe, that the court may choose to set out an example to others as a warning. In such cases the damages awarded are disproportionately high. It does not apply to all cases, and can be of use in some specific cases such as trespass. If for example a person finds any undesirable stranger in his premises he is entitled to drive him outside his boundary without resorting to undue or disproportionate force.
Typical examples are those associated with nuisance. The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. The correct principle is that wherever a man has right the law should provide a remedy and the absence of a remedy is evidence but is not conclusive that no right exists. Caselaws: a Ashby v White, 2 Lord Raym In this leading case, the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless Holt, C.
The underlying principle here is that all unjustifiable harms are torts.
It may be assault, battery, deceit, slander, negligence, or, it may not even have a name at all. When a tort is specific, it is narrowed down to a particular wrong. But when it is not specific, and considered at a wider level that all harms without legal justifications are torts, then, it is in a wider sense. This approach allows the field of tort to expand to accommodate newer torts as the society develops. After all, tort has grown over the years giving rise to new areas of torts such as strict liability, absolute liability and so on.
In the last few decades, new branches of laws like consumer protection laws, defamation laws and the like, are in place. Whether these can be seen as new branches of a growing tree, or new array of pigeon holes, both approaches can be accommodated as valid points of view. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability.
Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by court would be conducive. Tort versus Crime: A comparative analysis: 1 Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect the victim but also to the society as a whole to a great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with torts.Pain and suffering.
The suit is for punishment. Reasonable foreseeability does not mean remote possibility. For example. Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
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