LAW OF Torts 2020 PDF

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AL-AMEEN COLLEGE OF LAWLAW OF TORTSMODEL ANSWER PAPER 2019-Duration: 3 Hours Max. Marks: 80 Instructions: Answer all five Units. One essay type question and one short note/ problem is compulsory from each Unit. Figures to the right indicate marks. Answer should be written either in English or in Kan...

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AL-AMEEN COLLEGE OF LAW LAW OF TORTS MODEL ANSWER PAPER 2019-20 Duration: 3 Hours Max. Marks: 80 Instructions: 1. Answer all five Units. 2. One essay type question and one short note/ problem is compulsory from each Unit. 3. Figures to the right indicate marks. 4. Answer should be written either in English or in Kannada completely. Unit 1 1. Define tort and bring out all the essentials of torts with illustration. Distinguish between tort and crime, tort and contract.

(10 Marks)

The word tort is a Latin word ‘tortum’ which means ‘twisting out’ and in popular sense it implies conduct which is twisted or unlawful. A tort is simply a civil wrong.Torts are wrongdoings that are done by one party against another. As a result of the wrongdoing, the injured person may take civil action against the other party. To simplify this, let's say while walking down the aisle of a grocery store, you slip on a banana that had fallen from a shelf. You become the plaintiff, or injured party, and the grocery store is considered the tortfeasor or defendant, the negligent party. Simply said, you would probably take civil action against the grocery store to recoup compensation for pain, suffering, medical bills and expenses incurred as a result of the fall. Tort can be said to be a wrongful act, not including a breach of contract or trust, that results in injury to another’s person, property, reputation, or the like and for which the injured party is entitled to compensation. According to Dr. Winfield, “Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”

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Thus in simple terms, tort is a civil wrong or breach of a duty to another person on which courts, based on fault, impose liability and it is mainly concerned with providing compensation for personal injury and property damage caused by negligence. There are certain conditions which must exist before a person is held liable in tort. The conditions or elements are as follows: i. Wrongful act-In case of tort there must be a wrongful act or omission on the part of defendant. The wrongful act is an act which is done without any lawful justification. The act of the defendant becomes wrongful only when there is violation of legal rights. If the act complained of does not violate legal right of another person, it is not a tort. Thus in tort the plaintiff has to prove that his legal rights have been violated by the act of the defendant. ii. Legal damage-In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind. [Whereas damages mean the compensation claimed by the injured party and awarded by the court.] The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damnum. •

Damnum Sine Injuria- ‘damnum’ means damage in the form of money, comfort or health,

‘injuria’ means violation of legal rights and ‘sin’e means without. That means “actual loss without legal loss”, economic loss or financial losses are actual loss which is not violating any legal right and they are not actionable in tort. Example- Gloucester Grammar School Case-A school master set up a revel school next to that B. Many students left the old established school of B and got admission in the newly opened school of A. As a result B suffered a heavy loss and filed a suit against A for damages. Court held that, “no suit could lie on the ground as bona fide Competition can afford no ground of action whatever damage it may cause”. Every person has a right to carry on his trade or profession in competition with others and if as a result of a healthy business competition his rival suffers a loss then he is entitled to recover any compensation. Acton v. Blundell, in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right.

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• Injuria Sine Damnum- That means “legal loss without actual loss”. Legal loss refers to breach of private right, trespass etc. and its actionable in law of tort. Defendant is liable for give damages. This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff. iii.Legal remedy -The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal. Difference between tort and crime: The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of

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proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution. Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action for damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also. Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are: a)

Tort is an infringement or privation of private or civil rights belongigng to individuals,

whereas crime is a breach of public rights and duties which affect the whole community. b)

In tort the wrong doer has to compensate the injured party whereas in crime, he is punished

by the state in the interest of the society. c)

In tort the action is brought about by the injured party whereas in crime the proceedings

are conducted in the name of the state. d)

In tort damages are paid for compensating the injured and in crime it is paid out of the fine

which is paid as a part of punishment. Thus the primary purpose of awarding compensation in a criminal prosecution is punitive rather than compensatory. e)

The damages in tort are unliquidated and in crime they are liquidated.

Difference between tort and contract: The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which

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are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Some of the distinctions between tort and contract are given below: a) A tort is inflicted against or without consent; a contract is founded upon consent. b) In tort no privity is needed, but it is necessarily implied in a contract. c) A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam( right available against some determinate person or body) d) Motive is often taken into consideration in tort, but it is immaterial in a breach of contract. e) In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties. In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract. (OR) B) Explain the Mental Elements of Torts in detail.

(10 Marks)

In every tort there is violation of legal rights of another person. Such a violation may be the result of deliberate intention (e.g., an assault) or culpable negligence where the foresight of the consequences is present though they are not directly desired e.g., reckless driving in a crowded street. It is well known that mens rea (blameworthy mental condition) is an essential element of a crime. A person cannot be convicted for an offence unless his mens rea, i.e. guilty intention is proved. This in other words means that act alone cannot constitute a crime unless it is accompanied by mens rea. This fundamental principle of criminal liability has been expressed by the latin maxim

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“actus non facit reum, nisi mens sit rea” which literally means that a guilty act together with a guilty mind constitute a crime in other words an act is not a crime unless it is committed with a particular criminal intention. What constitutes mens rea is laid down in the case of offences defined in the Indian Penal Code. The ultimate end of criminal law is to prevent harm by punishing the doer of it. It is clear that it is useless to punish a man unless he did the wrongful act with a guilty mind. Under criminal law mens rea or a guilty mind is an important element for punishing a man for committing a crime. Here the question is how far mental element is an essential element for determining the tortious liability.

In doing any wrongful act, generally the three stages of the human mind are examined which are as follows: i. Intention; ii. Motive; and iii. Malice. INTENTION Intention is a term which is difficult to define. It can be variously said to mean the object, purpose, the ultimate aim or design behind doing an act. Intention is the conscious voluntary exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose. Intention has been defined as the fixed direction of the mind to a particular object, or determination to act in a particular manner and it is distinguishable from motive that which incites or stimulates action.

Intention is the result of working of the brain and can be gathered from judging the act and the circumstances under which it was done. Intention connotes a conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified act and which the human mind conceived and perceived before itself.

Intention is a state of mind and it cannot be permanent, man’s state of mind can change in any moment. It is an internal fact, something which phases in the mind and direct evidence of which

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is not available. The word ‘intent' does not mean ultimate aim and object. Nor is it used as a synonym for ‘motive’.

Intention is often referred in different terms under criminal law like ‘knowingly’, ‘voluntarily’, ‘fraudulently’, dishonestly’, ‘malignantly’, ‘wantonly’, maliciously’, ‘reason to believe’ etc. All these words indicate the blameworthy mental condition required at the time of commission of the offence in order to constitute an offence. • Knowledge as a Sub-level of Intention An act is intentional as to its consequences if the person concerned has the knowledge that it would result and also the desire that it should result. The intention of men are inferences of reason from their actions where the action can flow but from one motive, and be the reasonable result of that one intention.

The act must be done with a wrongful intention (meaning intentionally and without just cause or excuse). ‘Wrongful’ means ‘not fair, morally right or legal.’ ‘Wrongful intention' means ‘spite, evil intention, malevolence, unfair intention, immoral intention, illegal intention, illegal or immoral motives’. When a person has intention to commit some wrong act, he is having the knowledge that what would be its consequences and that he wants it to get fulfilled: When I throw a stone at you with the desire that it should hit you and accordingly it hits you, I have intentionally thrown the stone upon you.

Desire for a particular consequence is predominant in all intentional acts. But in certain cases law will impute intention to the parties. In such cases in point of law parties will be deemed to have intended the natural and probable consequences of their acts. For example, if I fire a gun at your dog wishing merely to scare it and in fact some of the pellets hit it, it is not open to me to say that I intended only to scare it and not to hit it. So also if the pellets hit you who were standing by the side of the dog, I cannot raise the plea of non-intention. In such cases the law will presume the natural consequences of those acts. • Importance of Intention in Torts Generally intention is not an essential condition for liability in tort. The purpose of tort is not to punish the wrongdoer but to award compensation to the injured. A person is deemed to know the

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natural consequences of his act. If A is injured by an act of B, then B will be liable even though he has no intention of harming A.

In Guille v. Swan [(1882) 19 Johns 381] (Balloon Case) the defendant flew in a balloon but unfortunately had to embark in the garden of the plaintiff. A huge crowd entered the garden to witness him as a result of which his garden was damaged. The plaintiff sued the defendant for damages. The defendant pleaded that he never intended to harm the plaintiff in such a manner but it happened accidentally. But the Court held that defendant was liable because loss to the plaintiff’s garden was the natural consequence of defendant’s act as crowd would naturally wish to see the person flying in the balloon. The defendant could foresee the consequence of his act, and it was sufficient that plaintiff had suffered loss.

In Wilkinson v. Downtone [(1897) 2 QB 57] (The Greyhair case) the defendant jokingly told the plaintiff that her husband had met with an accident, his legs were broken and was hospitalised. The plaintiff suffered nervous shock and got seriously ill and her hair turned grey. She sued the defendant for damages. It was argued on behalf of the defendant that he simply played a practical joke and never intended the consequences. But this argument was rejected by the court and the defendant was held liable to pay damages. The defendant was held liable because, he committed a wrongful act although he did not intend to harm the plaintiff.

• Negligence and Recklessness Negligence as a mental element in tortious liability is just the reverse of intention and usually signifies total or partial inadvertence of the defendant to his conduct or its consequences. In exceptional cases there may be fully advertence to both the conduct and its consequences. But at any event, there is no desire for the consequences and this is the touchstone for distinguishing negligence from intention.

It is a case of negligence when the consequences are not adverted to, though a reasonable person would have foreseen them. It is “recklessness” when the consequences are adverted to though not desired and there is indifference towards them or willingness to run the risk. Recklessness is sometimes called “Gross negligence” but very often and more properly it is assimilated with

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intention. In simple words, when circumstances demand care and a person fails to perform the duty to take care, he is liable for the tort of negligence.

• Exceptions: Intention as a rule is not an essential condition of tort in most of the cases e.g., nuisance, copyright, injury to person or property. However, in some torts, such as, assault, deceit, defamation, malicious prosecution, interference with trade or contractual relations and conspiracy, intention is one of the essential requirements. it may be noted that in negligence there is no intention or desire for the consequences. But when negligence is so severe that it amounts to recklessness or gross negligence then it is very often assimilated with intention. However in a large number of cases of torts, absence of intention is not a permissible defence.

MOTIVE Motive is not to be confused with intention. Motive has been described as ‘ulterior intent or objective’. It means the reason behind the act or conduct. By motive is meant anything that can contribute to, give birth to, or even to prevent any kind of action. Thus motive may be good or bad.

Motives are irrelevant in criminal as well as tortious liability. Motive is the moving power which impels to action for a definite result; intent is the purpose to use a particular means to effect such result. If a man knows that a certain consequence will follow his act, it must be presumed in law that he intended that consequence to take place although he may have had some quite different ulterior motive for performing the act.

The motive for an act is not a sufficient test to determine its criminal ...