B.A. LL.B. (Five Years) Sem 2 Law of Torts 2012 Jan Question Paper with Solutions

For full marks, cover: England, period by period: the writs of trespass and case and the maxims they produced (the Gloucester Grammar School case; Ashby v. White); the nineteenth-century growth of negligence and strict liability (Butterfield v. Forrester, Blyth v. Birmingham Waterworks Co., Rylands v. Fletcher) and the end of the forms of action; the twentieth century (Donoghue v. Stevenson, Caparo) and reform by statute; India, period by period: reception of English law under justice, equity and good conscience, early statutes (Fatal Accidents Act 1855), the failed code (Pollock's draft of 1886), and after 1950: art. 372, State liability (Vidhyawati, Kasturilal, Nagendra Rao), constitutional torts (Rudul Sah, Nilabati Behera), absolute liability and Bhopal (M.C. Mehta, Union Carbide, Indian Council for Enviro-Legal Action), and consumer and motor accident statutes; a comparison table; a conclusion.

Part A: England

1. The age of writs. The English law of torts did not start from principles. It grew from the remedies the royal courts would give. A plaintiff needed a writ that fitted his complaint.

2. In Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781, Alderson B. defined negligence as failing to do what a reasonable man would do, or doing what a prudent man would not.
3. In Rylands v. Fletcher, as cited by the Supreme Court of India, water from the defendants' reservoir escaped through old mine shafts and flooded the plaintiff's mine. The defendants were held liable without fault. Strict liability for dangerous things was born.

Procedural reforms in the same century abolished the old forms of action. Plaintiffs no longer had to choose the right writ, but the separate torts survived with their own elements.

3. The twentieth century: a general duty of care. In Donoghue v. Stevenson, (1932) AC 562, as cited by the Supreme Court of India, a manufacturer was held liable to the ultimate consumer of its product. There was no contract between them. Lord Atkin's neighbour principle made negligence a general tort. In Caparo Industries plc v. Dickman, [1990] 2 AC 605, the House of Lords refined it, requiring foreseeability, proximity, and that a duty be fair, just and reasonable.

4. The code that never came. In 1882 the Government of India asked Sir Frederick Pollock to draft a code of civil wrongs. His draft, the Indian Civil Wrongs Bill, was provisionally completed in 1886. It was never enacted, and India still has no code of torts.

5. After 1950. Article 372 of the Constitution continued the existing law, so the common law of torts remained in force. Indian courts then began to develop it in their own way.

1. Liability of the State. In State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, the State was held liable like any employer for a jeep driver's negligence. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, it escaped liability for police negligence in exercising sovereign powers. In N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, the Court said sovereign immunity has no place in a modern welfare State.
2. Constitutional torts. In Rudul Sah v. State of Bihar, AIR 1983 SC 1086, a man kept in jail for fourteen years after his acquittal was awarded compensation in a writ petition. In Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, the Court held that such compensation is a public law remedy to which sovereign immunity does not apply.

Conclusion. In England the law of torts grew from the writs of trespass and case. The forms of action ended in the nineteenth century, and the twentieth gave negligence a general basis in Donoghue v. Stevenson. India received that law as justice, equity and good conscience, never adopted Pollock's draft code, and kept it in force through article 372. Since 1950 Indian courts have gone their own way. They imposed absolute liability in M.C. Mehta, awarded constitutional compensation in Rudul Sah and Nilabati Behera, and narrowed State immunity in Nagendra Rao.