Practice Questions: The Law of Torts- 1 | Legal Reasoning for CLAT PDF Download

Essentials Of ATort

In order for an action to be labelled as a tort, two conditions must be satisfied:

• There must be an act or an omission on the part of the defendant / the alleged wrongdoer
• The act or omission should result in a legal damage,

There are two maxims that are used to determine whether a party has a valid claim in tort law, i.e., whether he can take a person to court for a tort.
They are:
(a) Injuria sine damno; and
(b) Damnum sine injuria

Injuria sine damno

This means the violation of a legal right without the causation of any actual damage. This is a valid claim in a court of law.

Injuria Sine Damno

Q.1. Facts: You establish a school and charge Rs. 1,000/ - per year as fees. Another school is set up near your school, and competition forces you to reduce your fees to Rs.500/-. Do you have a remedy in law?
Principle: A violation of a legal right, with or without damage, gives rise to a tort.
Solution: This question is based on the facts of the case of Gloucester Grammar School. In that case, the court held that though there was damage, there was no legal injury, because no one has a right to an unrestricted and protected market. Fair competition is natural, and there is no right to protect you from it. As the facts of this case are materially the same as in Gloucester, the principle applied is the same. This is a case of damnum sine injuria where there is damage without the violation of a right - therefore, you have no remedy in tort law.

Q.2. Facts: You punch a person for no good reason. However, the person is not hurt. Can he claim damages for the reason that you trespassed against this person?
Principle: A violation of a legal right, with or without damage, gives rise to tort.
Solution: One of the torts recognised by tort law is the Tort of Trespass to the Person’. This occurs when a person unjustifiably violates your person, i.e., your physical being. Damage need not be proven for this tort as long as violation of the legal right is shown. Here your right not be physically violated is affected. Therefore there is a legal injury if not actual damage Thus, this is a case of injuria sine damno where there is a legal injury without damage. Cases of injuria sine damno are actionable in court. Thus the person you have punched can claim damages against you for punching him.

Damnum sine injuria

This means the causing of damage without the violation of a legal right. Such a case is not a valid claim in the court of law. The fact that a man is injured by another man's act does not by itself constitute a cause of action: this may be even if the injury-causing act is intentional or deliberate. A violation of a legal right is required in order for a valid cause of legal action to exist.

Q.1. Fact: You mow the lawn every morning with the help of your electric lawnmower. Your neighbour files a tort claim against you stating that the noise of the lawnmower disturbs him greatly. Will his claim succeed?
Principle: Damage without violation of any legal right does not give rise to a tort
Solution: In order for an action to be labelled a tort, there must be an act or an omission and a legal damage resulting from that act or omission. In this case, there seems to be the commission of an act and legal damage (or injury) arising out of the same, but on closer examination it emerges that:
(a) The act is not necessarily something that was not supposed to be done Every man is entitled to mow his law with a properly functioning electric lawnmower as long as he does not do it at some unearthly hour, thus waking up the entire neighbourhood.
(b) The damage, if any, to the neighbour, is not a legal damage because though every person is entitled to peace and quiet within his property, this is subject to reasonableness. This means that everyday sounds like lawn mowing, revving up the car to warm the engine, music systems playing at a reasonable level etc. are sounds that cannot be complained against This means that a person's peace and quiet is subject to others' reasonably carried on daily activities. People can’t be fussy and force the world to come to a standstill. So in this case there may be damage, i.e. the neighbour may be disturbed, but the damage is not a legal damage against which compensation can be claimed in law.
Therefore, this case would be one of damnum sine injuria where your neighbour might have been injured but because his legal right has not been violated, he has no valid claim in law. Therefore, your neighbour’s claim will not succeed.

General Defences to Tort Claims

If someone sues you claiming that you committed a tort, then there are certain defences you can take. The extent to which they apply against different torts may, however, differ. These are some defences that can be used against most torts.
Remember that these are defences - they are meant to be used as shields, rather than swords. This means that if somebody brings a tort claim against somebody else, the defendant can use these defences to show that he is not liable in that particular situation, and that he cannot be made to pay damages to the plaintiff.

Volenti Non Fit Injuria (‘VNFI’)

Translated into English, this maxim means 'voluntary taking of a risk'. It's akin to the commonly used phrase ‘asking for it'. It's when you choose to put yourself in a situation that causes you injury.
Q.1. Facts: Virendra is watching a cricket match from atop a tree just outside the stadium. The batsman, Mahendra, hits the ball hard and the ball flies over the boundary and hits Virendra. Virendra falls from the tree and hurts his back. Can Virendra claim damages from either the batsman or the stadium authorities?
Principle: No person can enforce a right that s/he has voluntarily waived.
Solution: This case requires the application of the principle of volenti non fit injuria. Even if Virendra had been watching the match inside the stadium, the law would assume that he took the chance of being hit by a ball. This is the case with any spectator in a cricket match. Furthermore, the fact that Virendra was not even inside the stadium, and was watching the match from such a precarious position makes the case tilt all the more in favour of the stadium authorities. Clearly the defence of volenti non fit injuria comes into play, and the stadium authorities cannot be held liable.

Q.2. Facts: A lady was walking in the opposite direction in a narrow one-way by-lane. The lane had no lighting and it was very dark. A car was moving in the right direction, but without headlights. The driver did not see the lady and knocked her down. The lady sues for damages for harm due to negligence. Will she succeed?
Principle: No person can force a right that s/he has voluntarily waived.
Solution : Though the lady did do something risky by walking down a one-way by-lane, it certainly cannot be said that she voluntarily waived the right to claim damages if she was the victim of a wrongful act such as driving without lights. Volunti non fit injuria only applies if she had known the risk of a car without headlights and willingly accepted it -
this she did not. As we will later team when we talk about contributory negligence, it may be that the court would ask the driver to pay lesser damages to her on account of her own negligence. Basically, her own initial negligence in walking in the wrong direction will result in her not getting as much compensation as she would have got if she had been perfectly careful.

Plaintiff is the wrongdoer

The essential point of defence in this case is that the plaintiff did something wrong which caused him the injury Since the plaintiff did something wrong, he cannot claim damages from someone else for the injury caused to him.

Inevitable accident

When an injury is caused to a person by an event that could not be foreseen and avoided despite reasonable care on the part of the defendant, the defence of inevitable accident can be used

Act of God

This defence is very similar to the defence of inevitable accident. The difference is that in the defence of Act of God (Vis Major in Latin) the accident occurs because of an unforeseen natural event.
Two requirements need to be satisfied to avail of this defence:
(a) The injury must be caused by the effect of natural forces.
(b) The natural forces must be unforeseen, or the effects must be unavoidable.
So even if a natural event like a storm is taking place, if you can take precautions and avoid the damage, the defence cannot be used.

Private defence

If you injure someone, or something that belongs to someone else, while defending yourself or your property, then you may be excused if the force you used to defend yourself was reasonable. Therefore, in order to claim this defence, the following must be satisfied:
(a) The defendant must be under threat or attack.
(b) The response must be necessary for self-defence and not for revenge.
(c) The response must be proportional to the attack or threat.

Q.1. Facts: Ram and Shyam are neighbours. Ram’s cattle keep coming into Shyam's garden and ruining it. Shyam's fencing is no good. Shyam digs a deep trench at the boundary and covers it with grass. Ram's cattle fall into the trench and break their legs. Can Ram successfully claim damages from Shyam?
Principle: A person is not responsible for an act required for his private defence.
Solution: In this case, you must remember that for private defence to be claimed successfully, the law only allows you to use reasonable force or means to keep out trespassers. Use of excessive force is not allowed So what must be determined is whether the digging of a deep trench covered with grass was an excessive measure for preventing the entry of cattle in this particular fact situation. The answer is that it was an excessive measure. If Shyam had not dug such a deep trench, and had not covered it with grass, he would still have been able to keep the cattle out if had only built a proper fence - which, as the fact situation currently tells us, was no good. Therefore, excessive force was used and Shyam cannot use the defence of "private defence". Ram can, therefore, recover damages from Shyam though they are likely to be reduced because of Ram’s own negligence in the matter.

Q.2. Facts: Mr. Raj was passing Ms. Meeta's house when Ms. Meeta's fierce dog ran out of the house and bit Mr. Raj’s overcoat. Mr. Raj took out a pistol from his pocket and pointed it at the dog. The dog ran away, and Mr. Raj shot it. Mr. Raj knew that the dog had bitten a lot of people in the locality. Ms.Meeta sues Mr. Raj for damages. Will she succeed?
Principle: No person is liable for an act done in self-defence.
Solution: In this case Mr. Raj will not be able to use the defence of "private defence" because that defence only applies where “reasonable and necessary force" was used to protect oneself In this case, however much of a good Samaritan Mr. Raj may have considered himself to have been, he did not need to shoot a dog that was running away. Ms Meeta will succeed.
It is extremely important to read the principle given very carefully and then to understand its application. Quite often, two similar looking questions have two different principles and therefore the answers will also be different.

Mistake

Mistake is not usually a defence in tort law. It's not good enough to say that you didn't know you were doing something wrong. If that were to be considered a defence, people would consider it as an excuse not to know the law and ignore the rights of others.

Necessity

necessitas inducit privilegium quod jura privata (Necessity induces a privilege because of a private right). This is a hard-to-use defence. In necessity, you have to show that the act you did was necessary in the circumstances

Act under Statutory Authority

If the act that caused the damage was done under the authority of some statute that is a valid defence.

Capacity to Sue or be Sued

As a general rule, every person has the right to sue another and every person can be sued by another. In this regard it's important to remember a few things:

Minor

In India a 'minor' is a person under the age of 18. A minor can sue just like an adult, the only difference being that the tort action will have to be put forth and proceeded with, in court, by an adult acting on behalf of the minor. 

Corporations

Companies can be sued for the actions of its employees committed when acting as employees of the company. A company cannot be sued if its employee is negligent at home, etc. The basic thing to remember here is that companies are treated as 'persons’ in law, for certain purposes Artificial persons like companies are also referred to as 'juristic' persons.

Act of State or Persons having Judicial Authority

The government (municipal / state / centre) cannot be sued for any claim arising while it is acting within its governmental/ sovereign capacity.

Vicarious Liability

This is an exception to the general rule that a person is only liable for his own wrongful acts. Vicarious liability means liability for the acts of another. This usually happens where the person who committed the act did it on behalf of someone else.
Vicarious liability can arise in the following relationships:

(A) Master - Servant Relationship

If a servant does a wrongful act in the course of his employment, then not just the servant but also the master can be held liable for such an act.

Q.1. Facts: Pravin is the manager of a hotel belonging to Mr. Rajesh. Pravin negligently dropped a chair from the first floor. This chair fell on Ritu, who is Pravin’s wife and also the secretary at the hotel. Can Ritu claim damages from Mr. Rajesh?
Principle: Master is liable for the wrongful act of a servant done in the course of employment.
Solution : Yes, Ritu can claim damages from Mr Rajesh because Pravin is Mr Rajesh’s servant, and therefore, the latter is vicariously liable for Pravin's negligence. You might be confused by the fact thal Pravin is Ritu's husband but that does not make a difference because Pravin should be looked at as an employee/servant of Mr. Rajesh. Furthermore, nowhere in the principle is an exception made for husbands and wives. Since the negligence occurred in the course of employment, Mr. Rajesh is responsible for it.

Q.2. Facts: Ramesh worked as a driver in Company X. The manager asked him to drop someone at the railway station and return at the earliest. On his way back from the railway station, Ramesh saw his friend, Rakesh and offered to give him a lift to his house, which was very close to the office. A little while later, because of Mahesh's negligence, they met with an accident and Rakesh was hurt. Can Rakesh get compensation from Company X?
Principle: Master is liable for the wrongful act of a servant done in the course of employment.
Solution: Ramesh gave the lift while coming back from the railway station after dropping the master. This means that he was continuing to do his master’s duty, i.e.. drive the car back to office, when he chose to offer the lift. This means that the act of giving the lift was done while continuing to do acts in the course of employment. Company X will still be responsible. In this case, you have to apply the two tests to determine the difference between an authorised act wrongly, and an unauthorised act. Applying the second of the two tests will show you that this was an authorised act done wrongly.

Q.3. Facts: Dr. Ramesh was operating upon Amit in a nursing home owned by Dr. Kapoor During the course of the operation, due to the negligence of the staff, a small surgical item was left inside the patient's abdomen. Can Dr. Kapoor be held liable?
Principle: Master is liable for the wrongful acts of a servant.
Solution: Yes. Nowadays the judicial trend is to hold all hospital staff responsible for any negligence, even if they act independently and not under much control of the hospital. However, let’s stick purely to the principle (as you always must) - you can apply the hire-and-fire test and it will be found that the staff members are servants of the hospital. Since they are Dr. Kapoor's servants, he can be held liable.

Q.4. Facts: Raju was a driver who was employed by Hind Petroleum to drive their petrol trucks. All drivers were strictly prohibited from smoking while in the course of employment. This prohibition was also painted on the side of the trucks One day, while transferring petrol from the lorry to the underground tank of a petrol station, Raju struck a match tc light up his cigarette and threw it on the floor. Then was a huge explosion and the petrol station wa: badly damaged. The station claims damages frcn Hind Petroleum. Will they succeed?
Principle: Master is liable for the wrongful act of; servant.
Solution: The act of lighting the cigarette was done while the petrol was being transferred, so it wai connected to / affected the clearly authorised act It is irrelevant that the drivers were prohibited from smoking, since it still remains a wrong way of dome the act. The petrol station can claim damages from Hind Petroleum because the negligent act is in the course of employment, even if not a Dart of his duty.

Q.5. Facts: Roger was a driver employed by King Company to drive its freight trucks at night. One night, Roger was very sleepy and handed over the truck to his long-time assistant, John. Due to John's negligence, the truck hit a car coming from the other side. Can the car owner claim damages from King Company?
Principle: Master is liable for the wrongful act of a servant
Solution: This is a case of doing an authorised act wrongly. Part of your duty to drive carefully is to not let others drive Therefore, the duty, or the authorised act, was performed incorrectly In such a case the negligence was in the course of employment because as we know, it was the doing of an authorised act wrongly Yes, the car owner can claim damages from King Company.

(B) Principal-Agent Relationship

A situation may arise where the person for whose act you are made vicariously liable is not your servant but merely someone who acts on your behalf An agent is someone who is authorised to do an act by another person (principal) and consequently, acts on his behalf Both, the principal and the agent are liable for such acts.

Q.1. Facts: General Motors is a company dealing with second hand cars. Ram came to the General Motors office and said that he would sell their cars for a commission of 15% on each car General Motors agreed. One day, in the presence of a prospective buyer. Ram took a car out for demonstration purpose and knocked down a pedestrian. Is General Motors vicariously liable for the actions of Ram?
Principle: A person is liable for the acts of someone acting on his behalf.
Solution: In this case you have to see whether there is a principal-agent relationship involved. Here it is a principal-agent relationship because General Motors authorised Ram to drive their cars for demonstration purposes since this is necessary for the purpose of convincing customers. You don t have to prove that Ram was employed by General Motors as long as he was their agent, which is easy to prove, since he was being paid a commission to sell General Motors cars.

Q.2. Facts: Pratima, who was an old widow, opened an account with the Syndicate Bank, where she would deposit Rs.500/- everyday. Prakash, who was Pratima's neighbour, collected such amounts and deposited them at the bank. The bank paid him a small commission for this It was discovered that Prakash had been misappropriating the money for himself Pratima filed a suit against the Bank. Will she succeed?
Principle: Principal is responsible for the wrongful acts of the agent done in the course of employment
Ans: Clearly, Prakash was acting as an agent of the bank (since the Bank paid him a commission for the same - a common feature of agency) and therefore the bank will be liable for his fraud while doing what he was appointed to do. Yes, Pratima will succeed.
Principle: Principal is responsible for the wrongful acts of the agent done in the course of employment.
Solution: Ramesh was acting in the capacity of a friend rather than a bank employee, i.e., handling the money deposits was not in his course of employment, and therefore the fraud was not committed in the course of employment. Please note that if the Bank had by its actions indicated that Ramesh was capable of crediting money, then the result may have been different - since in that case Rita would have been entitled to treat it as a service extended by the Bank. Remember our discussion about how the law judges from the point of view of the injured party, i.e., whether the injured party would reasonably come to the conclusion that the doer of the act was authorised to do it by his master.

(C) Partners

In a partnership, the partners are responsible for each other's actions during the course of employment i.e during the conduct of the business. The partners can be held responsible jointly and severally for each others' actions. Jointly means “all together" while severally means "each separately”. This means that for any partner's actions, you can either sue each partner separately or all the partners together.

Remoteness of Damage

Sometimes the relationship between an act and some damage caused may be far-fetched and unclear. In other words, in some cases the damage may be very remote from the act that is sought to be punished. This chapter deals with situations where the damage is too remote from the act and therefore the act cannot be responsible for the damage. “Novus actus intervemens" or “remoteness of consequences” is a defence to tort liability. The logic is that there are too many intervening acts in the middle for the first act to be held responsible for the final injury.

The Tests

There are two main tests to ascertain whether the damage is remote or not:

(A) The Test of Reasonable Foresight

The basis for this test is that a person can only be held responsible for such damages as a reasonable man would have foreseen would result from his action

(B) The Test of Directness

According to this test, a person is held guilty for all the results that are the direct consequences of his act, irrespective of whether he could have reasonably foreseen them.

Q.1. Facts: Ramesh sent certain goods by horse-drawn carriage to a customer's place. On the way there, the servant who was driving the carriage left the carriage unattended by the side of the road and went to have a cup of tea. Some children who were playing nearby threw stones at the carriage and frightened the horse The horse started running wildly. The horse was about to run over an old man when a traffic policeman caught hold of the horse, and was injured in the process. Is Ramesh liable?
Principle: A person is only responsible for those consequences from his actions that are reasonably foreseeable.
Solution : The facts are identical to the facts of a case called Haynes v. Harwood( 1935). In this case, the court rightly held that even if there seemed to be several acts in between the acts of the negligent servant and the injury to the policeman, what must be seen is what caused the entire event in the first place. The court held that the servant should have foreseen that the animal could have been frightened by some mischief since it was left alone by the side of the road. Therefore, the servant was negligent.

Q.2 Facts: There was a leakage of oil from Ramesh's ship Because of the sea breeze, the leaked oil drifted across to a harbour 100 miles away, and collected near a ship belonging to Prakash. Prakash's ship was undergoing some repairs, and because of a spark from the repair work, the oil caught fire and the ship was damaged. Can Prakash claim damages from Ramesh?
Principle: A person is responsible for those consequences of his acts that are reasonably foreseeable.
Solution: The facts of this case are based on a case known as the Wagon Mound Case (1961). In this case the court held that nobody could have foreseen that the oil would travel this far to a ship in a harbour and that it would catch fire This did not satisfy the test of reasonable foresight. Applying the same reasoning here, Ramesh cannot be held responsible - after all, how could he have been reasonably expected to know that the oil would drift to such a great distance, and then just happen to reach a place where it would be ignited because of some sparks from another ship undergoing repairs.

Nuisance

Nuisance' means unreasonably interfering with a person’s rights over, and in connection, with his property/ land Nuisance may be caused in various ways, such as the causing of unnecessary noise, heat, smoke, smell and other such disturbing activities.

Nuisances are of two varieties:
(a) Public Nuisance
(b) Private Nuisance

a. Public Nuisance

This type of nuisance occurs when the right of the general public is interfered with. Public nuisance is a crime, punishable under Section 268 of Indian Penal Code, 1860 and not merely a civil wrong committed against the rights of one person, and as such, commission of a public nuisance results in punishment by the state, which may take the form of a fine or imprisonment.
Since it is a crime that is actionable by the state on any complaint, private parties affected by the crime cannot file civil suits (tort cases) to claim damages. One of the main reasons for this is to avoid a multiplicity of lawsuits flowing from a single act of public nuisance. There are, however, some exceptions to this rule:

Special Damage Exception to the No Private Action Rule: While the general rule is that a private civil suit cannot be filed against an act of public nuisance, an exception is made in cases where the injured private party can prove that s/he suffered special damage, in addition to the regular damage suffered by the other members of the public who were inconvenienced by the nuisance.

b. Private Nuisance

This is the kind of nuisance that is ground for a tort action for nuisance by a private party.
In order to establish such a tort, certain requirements have to be met:

1. 'Unreasonable interference’ by the defendant
We face a lot of minor interferences in our lives. Everyday noises, cooking and vehicle smoke, etc., are in themselves minor interferences, and we have to endure them in order to coexist. If such minor interferences were said to be wrongful, then there would be chaos - nobody would be able to go about their everyday work for fear of disturbing others! Therefore, in order to prove a tort of nuisance, it is not good enough to show that there was some interference. It needs to be shown that there was unreasonable interference, i.e.. interference that is more excessive than regular interference is more excessive than regular interference.

2. interference must be with the use o enjoyment of the plaintiffs property

The interference to the use or enjoyment of tb plaintiffs property may be injury to the property itself or injury to the comfort, health and peace c the occupants of some property For instance.; person waters his garden in such a manner the the water always flows over to the neighbour’ house and ruins his verandah carpet and garden. This is an example of Damage to the property itself. This is an example of damage to the property itse

3. The plaintiff must have suffered some damac as a result

In order to prove a tort of nuisance, it must t shown that the plaintiff suffered damage or tf threat of damage as a result of the unreasonable interference to the use or enjoyment of his Ian This is unlike some torts like trespass, (entering property without permission) where mere violatic of the right is enough and it need not be show that the plaintiff suffered any damage from tf infringement. In the case of nuisance, however, lc will assume damage even in cases when tf nuisance has not actually caused the damage b merely threatens to do so - after all, there is r sense in waiting for the damage to occur if any reasonable person could foresee that the damage would actually result !