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Tort Law, Raghuraman.K

TORT LAW L.L.B, 1st Sem, 1st year

Raghuraman.K [email protected]

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Tort Law, Raghuraman.K

Contents TORT LAW ............................................................................................................................................... 1 Questions ................................................................................................................................................ 4 UNIT I ...................................................................................................................................................... 8 Q. Essentials of tort. Explain with cases.............................................................................................. 8 Q. Describe the term “ubi jus ibi remedium”. .................................................................................. 10 Q. How far Motive and malice are relevant in an action for tort ? ..................................................11 Q. How is intention relevant to torts ? ............................................................................................. 11 Q. Is it law of tort or law of torts ?.................................................................................................... 15 Q. What is pigeon hole theory ? ...................................................................................................... 15 Q. How law of torts is different from crime...................................................................................... 17 Unit II..................................................................................................................................................... 18 Q. What are the general defences against tort ?.............................................................................. 18 Q. What do you mean by vicarious liability in Tort? Whether a master is liable for committing fraud, theft by his servant during course of employment? .............................................................. 23 Q. What do you mean by vicarious liability? Explain with decided cases. .......................................23 Unit III.................................................................................................................................................... 29 Q. What is negligence ? Discuss important features of negligence with cases. ............................... 29 Q. What do you understand by the expression `Nuisance' ? what are kinds of nuisance ? Distinguish between Public and Private Nuisance............................................................................ 32 Q. Distinguish between nuisance and trespass ................................................................................ 38 Q. What is a strict liability tort ? ....................................................................................................... 39 Q. Short notes on malfeasance, misfeasance, and nonfeasance .....................................................41 Q. What is absolute liability tort ? .................................................................................................... 41 Q. Write short notes on Volenti Non fit Injuria (Consent or Leave and Licence) ............................. 43 Q. Short notes on Res ipsa Loquitor ................................................................................................. 46 Q. What are legal remedies and measure of damages ? .................................................................. 47 Q. What are the different type of damages ? ................................................................................... 47 Q. What is remoteness of damage. Explain with cases .................................................................... 52 UNIT IV .................................................................................................................................................. 54 Q. Write about false imprisonment ? ............................................................................................... 54 Q. Short notes in Assault and Battery ............................................................................................... 58 Q. Battery .......................................................................................................................................... 60 Q. Explain the tort of defamation with examples............................................................................. 61

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Tort Law, Raghuraman.K Q. What do you understand by the expression `Malicious Criminal Prosecution' ? What facts have to be proved by plaintiff for claim damages for `Malicious prosecution." ? .................................... 65 Q. What is difference between "Malicious Prosecution" and "False imprisonment" ? ................... 65 Q. Trespass to land or property ........................................................................................................ 68 Q. Short notes on Conversion ........................................................................................................... 70 Q. Short notes on Actio personalis moritur cum persona ................................................................ 74

UNIT V : ................................................................................................................................................. 77 Q. Define consumer as per Consumer Protection Act ...................................................................... 77 Q. Short notes on .............................................................................................................................. 79 Q.What are the salient features of Consumer protection Act, 1986 ? ............................................. 81 Q. What is deficiency in service ? .....................................................................................................84 Q. What are the basic consumer rights ?.......................................................................................... 86 Q. Discuss the composition, jurisdiction, and appointment of the .................................................. 88 1.

District Commission .................................................................................................................. 88

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State Commission .....................................................................................................................88

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National Commission ................................................................................................................ 88

Q. Provision related to appeals in the Consumer Protection Act ..................................................... 97 Q. What is a consumer dispute ? ...................................................................................................... 98 Q. What is a Complaint ? ..................................................................................................................98 Q. Who can file a complaint under CPA Act ?................................................................................... 99 Q. What is the State Consumer Protection Council ? ..................................................................... 100 Q. What are unfair trade practices under Consumer Protection Act ? .......................................... 102 Q. What are the reliefs available for the consumer under the Consumer Protection Act ? .......... 105 Q. Salient features of the Motor Vehicle Act .................................................................................. 107 Q. What is third party insurance under Motor Vehicles Act, 1988 ? .............................................. 111 Q. What is no fault liability in MVC Act ? ........................................................................................ 117 Q. What are the Defence Available to Insurer under MVC Act ?.................................................... 119 Q. What are the methods for Application for compensation under MVC Act? ............................. 121

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Tort Law, Raghuraman.K

Questions Q. 1 What do you understand by "Tort" ? Can you give a comprehensive definition of Tort ? Discuss essential characteristics of Tort. Q. 2 Distinguish between Tort, Crime and Contract. Q. 3 "Real significance of legal damage is illustrated by two maxims - "Injuria sine damnum" (injury without damage) "Damnum sine injuria" (damage without injury) - Discuss. Or What do you understand by the maxims "damnum sine injuria" and "injuria sine damnum" ? State also the applicability of these maxims ? Q. 4 Explain the maxim - "Ubi Jus ibi remedium". Q. 5 What do you understand by "Tortious Liability" ? Q. 6 Discuss critically the two competing theories with regard to the foundations of "Tortious liability". Or Which of the two competing theories is correct ? Is there a law of tort or law of torts ? :(i) all injuries done to another person are tort unless there is some justification recognised by law. Or (ii) There are definite number of torts outside which liability in tort does not exist. Q. 7 How far Motive and malice are relevant in an action for tort ? Q. 8 Explain :- (1) Mal-feasance, (2) Mis-feasance, (3) Non- feasance. Q. 9 Explain the maxim `Volenti nonfit injuria'. Q. 10 What do you understand by an "Act of God" ? How far is it a valid defence ? Q. 11 (A) What do you understand by the defence of "Inevitable Accident." (B) What is difference between "Inevitable accident" and "Act of God"? Q. 12 Discuss following defences against tortious liability :(i) Private defence (ii) Acts causing slight harm

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Tort Law, Raghuraman.K

(iii) Mistake (iv) Necessity. Q. 13 What is Statutory authority ? How far is it a good defence in an action for tort ? Q. 14 What do you understand by "Legal remedy" ? Discuss the difference between `judicial remedy' and "Extra judicial remedy". Q. 15 What do you understand by `Damages' ? What are the various kinds of damages and define each of them ? Q. 16 What is an Injunction ? How do you classify it ? Enumerate the classification, if any, and explain them. When is a temporary injunction granted Q. 17 Discuss briefly various extra-judicial remedies available in torts ? Q. 18 Explain the maxim "actis personalis moritur cum persona." Examine also the exceptions to the rule, if any. Q. 19 What do you understand by Vicarious Liability ? State the principles on which doctrine of vicarious liability is based. How does liability in tort arise out of acts or omission of other? Q. 20 "The Vicarious Liability of Master does not depend on the lawful or unlawful nature of acts of servant and the master would be liable for alleged act of the servant which had taken place in course of his employment even though the servant may have acted in contravention of some provisions of the Law." - Explain and illustrate the above statement. Q. 21 Under what circumstances a master is not liable for the torts committed by servant ? Or What are the exceptions to rule of master's liability to third person ? Discuss. Q. 22 Can a Government be held liable for damages caused by the negligence of its officer in performing their duties ? Q. 23 (A) What do you understand by `Joint Tort-feasors' ? Under what circumstances does the joint liability arise and what is meant by contribution ? (B) What are the principles governing contribution between joint-tort feasor ? Q. 24 Will a release of one of several tort feasors release all the other joint tort-feasors ? Q. 25 Discuss the principles of Merryweather v. Nixon. How for this principle is applicable in India."

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Tort Law, Raghuraman.K

Q. 26 Define `Negligence'. Is Negligence a specific tort ? What are conditions of liability for negligence ? Q. 27 Discuss the principle of `Standard of Care' in negligence. Q. 28 Discuss the rule of Burden of proof of Negligence. Q. 29 Explain the doctrine of `Res ipsa loquitur'. Q. 30 What do you understand by contributory negligence ? What changes has the recent legislation affected in Doctrine of Contributory Negligence ? Q. 31 Define and Explain the term `Trespass To Land. What must be proved by plaintiff to sue for trespass to land ? Q. 32 What are the plaintiff's remedies in action for trespass? Q. 33 Define and explain torts affecting Moveable property. Q. 34 How do you distinguish Trespass and Conversion ? Q. 35 What do you understand by the term "trespass to the person with reference to the law of torts" ? What are its kinds ? Discuss assault and battery. Q. 36 When does an action lie for assault and battery ? In what circumstances may assault and battery be justified ? How damages are assessed ? Q. 37 Define and explain `false imprisonment'. Q. 38 What do you understand by the expression `Nuisance' ? what are kinds of nuisance ? Distinguish between Public and Private Nuisance Q. 39 Discuss the `Rule or Strict Liability' as laid down in Rylands v. Fletcher. What are the exceptions to law laid down in Rylands v. Fletcher ? Q. 40 What do you understand by `Absolute Liability' ? How rule of absolute liability is different from rule of strict liability ? Q. 41 Discuss the rule of the liability for dangerous chattels. Q. 42 Define `Defamation'. What are its kind ? Q. 43 When slander becomes actionable per se ? Q. 44 Distinguish between. `Libel' and `Slander'. Q. 45 What is "Innuendo" ? Explain the rule of Innuendo.

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Tort Law, Raghuraman.K

Q. 46 In a suit filed for recovery of damages for defamation. But no evidence was led to show the actual damage suffered by the plaintiff. Is the plaintiff still entitled to damages ? Decide. Q. 47 What acts are privileged under the law of torts ? Discuss. Q. 48 What do you understand by the expression `Malicious Criminal Prosecution' ? What facts have to be proved by plaintiff for claim damages for `Malicious prosecution." ? Q. 49 What is difference between "Malicious Prosecution" and "False imprisonment" ? Q. 50 When an action will lie against civil proceeding instituted maliciously and without reasonable and probable cause? Q. 51 What do you understand by the term "Abuse of Legal Process"? Q. 52 What do you understand by "Tort of Mental and Nervous Shock" ?

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Tort Law, Raghuraman.K

UNIT I Q. Essentials of tort. Explain with cases

Act/omission: To constitute a tort there must be an act, which can either be negative or positive. There must be some breach of duty to constitute such wrongful act or omission. It means there was a duty to do or not to do a certain action, or to behave in a particular manner which a reasonable man is expected to act under certain circumstances. If a corporation maintains a children park which has a poisonous plant but fails to put proper fencing. If one of the children eats a fruit from that tree and dies, then the corporation can be held liable for such an omission. A person cannot be held liable for social or moral wrong. For example, if somebody fails to help a starving man then he cannot be held liable because it is a moral wrong unless some legal duty can be proved. Legal Damage: In order to constitute tort, breach of legal duty must be there. The legal right vested with the plaintiff should have been breached i.e certain act or omission have resulted in the breach of legal duty. The action can be instituted if there is a breach of legal right. For the injury sustained by the plaintiff, damages could be claimed by him. Legal damage could be understood more clearly with the help of following maxims: 1. Injuria sine damnum: “Injuria” means unauthorised interference with the right of the plaintiff. “Damnum” means harm or loss suffered in terms of comfort, money, health etc. When there is violation legal right without any harm to the plaintiff, the plaintiff can approach the court. The infringement of private right is actionable per se. What is required to show is the violation of a right in which case the law will presume damage. Thus, in cases of assault, battery, false imprisonment, libel 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 In Ashby v. White, the plaintiff was detained by the defendant, a returning officer. The plaintiff was a qualified voter at the parliamentary election but due to detention, his voting right was violated. The plaintiff sued the defendant for violation of his legal right. Since there is a right there is also a remedy available for it.

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Tort Law, Raghuraman.K

Similarly, in Bhim Singh Verses State of J&K, the petitioner, an M.L.A. of Jammu & Kashmir Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. Fifty thousand by way of consequential relief. 2. Damnum sine injuria: According to this maxim, there is some injury caused to the plaintiff without any unauthorised interference to plaintiff’s legal right. A person cannot claim damages in law even if the injury is caused due to the deliberate act of the defendant, as long as the other party is exercising his legal right. For example, a defendant set up a school exactly in front of the school of the plaintiff. The plaintiff suffered loss because of the rival school as he has to lower the fees and many students took admission in defendant’s school. There is no remedy available for the loss suffered by him. The defendant has not done anything in excess of his legal right. There are many forms of harm of which the law takes no account, (1) Loss inflicted on individual traders by competition in trade, (2) Where the damage is done by a man acting under necessity to prevent a greater evil, (3) Damage caused by defamatory statements made on a privileged occasion, (4) Where the harm is too trivial, too indefinite or too difficult of prove. (5) Where the harm done may be of such a nature that a criminal prosecution is more appropriate for example, in case of public nuisance or causing of death, (6) There is no right of action for damages for contempt of court. In the case, Bradford Corporation (Mayor of) Verses Pickles, the defendant was annoyed when Bradford Corporation refused to purchase his land in connection with the scheme of water supply for the inhabitants of the town. In the revenge the defendant sank a shaft over his land intentionally and intercepted the underground water which was flowing to the reservoir of the plaintiffs. Held, that the plaintiffs have no cause since the defendant was

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Tort Law, Raghuraman.K

exercising his lawful right although the motive was to coerce the plaintiff to buy his land. Q. Describe the term “ubi jus ibi remedium”.

The law of tort is said to be the development of the maxim Ubi jus ibi remedium. The word “jus” means legal authority to do something or to demand something. The word “remedium” means that the person has the right of action in the court of law. The literal meaning of the maxim is where there is a wrong there is a remedy. The circuit court of appeals of the United States of America in the case of Leo feist v. young observed that “it is an elementary maxim of the equity of jurisprudence and there is no wrong without a remedy”. 1. This maxim also says that there is no remedy without any wrong and the persons whose right is being violated has a right to stand before the court of law. 2. This principle also states that if the rights are available to a person then it is required to be maintained by that person only and remedy is available only when he is injured in the exercise of duty or enjoyment of it; 3. It is useless to imagine and think a right without a remedy. 4. It is necessary to keep in mind that both rights violated and the remedy sought or to be obtained should be legal. There are many moral and political wrong but are not ac...