BLS LLB 5 Years Sem 5 Torts 2017-18 Question Paper with Solutions

Malfeasance means the doing of an act which is wrongful and unlawful in itself, an act which the person had no right to do at all. The act is a tort because of what it is, not because of the manner in which it was done.

The word belongs to a set of three:

• Malfeasance: doing an act which is itself unlawful, for example a trespass or an assault.
• Misfeasance: the improper performance of an act which is otherwise lawful, for example a contractor who is entitled to repair a road but leaves the trench unguarded.
• Non-feasance: the omission to perform an act which the person was under a duty to perform.

Vis major, literally "a superior force", is the civil law name for what English law calls an act of God: an operation of natural forces so extraordinary that no human foresight could reasonably anticipate it, and against which no reasonable care could provide.

Two elements must be shown: the event must be the result of natural forces without any human intervention, and it must be so extraordinary that it could not reasonably be foreseen or guarded against. It is a good defence even to strict liability under the rule in Rylands v Fletcher.

Battery is the intentional and direct application of force to another person without lawful justification. The essentials are the use of force, however slight, applied directly to the plaintiff's body, intentionally, and without consent or lawful excuse.

No physical harm need result. As Cole v Turner (1704) put it, the least touching of another in anger is a battery, and throwing water on a person, snatching a book from his hand or pulling his chair away are all batteries.

The maxim is volenti non fit injuria: to one who is willing, no injury is done. Where the plaintiff has freely and voluntarily, with full knowledge of the nature and extent of the risk, agreed to run that risk, he cannot afterwards complain of the harm it causes him.

Two conditions must both be satisfied: the plaintiff must have knowledge of the risk, and he must have consented to bear it. Mere knowledge is not enough, which is expressed in the companion maxim scienti non fit injuria being rejected as a sufficient test.

Section 26 of the Consumer Protection Act, 1986 provides that where a complaint instituted before the District Forum, the State Commission or the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding Rs. 10,000, as may be specified in the order.

The arguments against Salmond are historical. Courts have in fact created new pigeon-holes: strict liability in Rylands v Fletcher (1868), intentional infliction of nervous shock in Wilkinson v Downton (1897), negligent misstatement in Hedley Byrne v Heller (1964), the manufacturer's duty in Donoghue v Stevenson (1932), and in India absolute liability in M C Mehta v Union of India (1987) and the constitutional tort of compensation for violation of fundamental rights.

The arguments for Salmond are practical. A litigant is not asked in court whether the defendant has committed "a tort" in the abstract; he is asked which tort, and he must prove its ingredients. In that sense the working lawyer lives in a world of pigeon-holes.

The modern reconciliation, associated with Glanville Williams, is that the two views describe the same law at different levels of abstraction. Salmond describes the law as it stands at any given moment, which is indeed a list; Winfield describes its capacity for growth, which is indeed general. Salmond himself never denied that the courts could create new torts; he only denied that there was a general principle waiting to be applied.

4. Aggravated damages, an increased compensatory award where the manner of the wrong injured the plaintiff's dignity or feelings.
5. Exemplary, punitive or vindictive damages, awarded not to compensate but to punish the defendant and deter others. Rookes v Barnard (1964) confined them in England to three categories: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated by the defendant to make a profit exceeding the compensation payable; and where a statute expressly authorises them.
6. Prospective or future damages, for loss which is reasonably expected to flow in the future from the same tort, awarded once because the law does not allow the same cause of action to be split.
7. General and special damages, the first being loss presumed by law and not requiring proof of amount, the second being loss actually incurred and required to be specifically pleaded and proved.

6. making a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
7. giving a warranty or guarantee of performance which is not based on an adequate or proper test;
8. making a misleading representation concerning the price at which goods or services are ordinarily sold, including a "bargain price" which is not one;
9. giving false or misleading facts disparaging the goods, services or trade of another person;
10. offering gifts, prizes or other items with the intention of not providing them as offered, or conducting a contest or lottery to promote sale;
11. permitting the sale of goods which do not comply with prescribed safety standards required to prevent risk of injury;
12. hoarding, destroying or refusing to sell goods so as to raise the cost.

The remedy is that the Forum may, under Section 14(1)(f), direct the trader to discontinue the practice and not to repeat it, and under Section 14(1)(hc) direct the issue of a corrective advertisement to neutralise the effect of a misleading one.

"Prosecuted". The defendant must have been the person who actively instigated the proceedings. Merely giving information to the police, on which they decide to prosecute, is generally not prosecuting, because the decision is then the officer's.

"Terminated in the plaintiff's favour". Until the proceedings end favourably no cause of action arises, and time does not begin to run. It is not necessary that he was acquitted on the merits: a discharge, withdrawal or quashing will do.

"Without reasonable and probable cause" means the absence of an honest belief, founded on reasonable grounds, in the guilt of the accused. It must be proved by the plaintiff as a positive fact, which is one of the rare instances of a plaintiff being required to prove a negative.

"Malice" means any motive other than a desire to bring an offender to justice. It is a separate ingredient from want of reasonable cause and neither implies the other, though malice may be inferred from a total want of cause, which is how it is usually proved.

Indian authority: West Bengal State Electricity Board v Dilip Kumar Ray (2007) 14 SCC 568 collects the elements.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, known as The Wagon Mound (No. 1) [1961] AC 388, is the Privy Council decision which settled that the test of remoteness of damage in negligence is reasonable foreseeability and not directness.

Facts. The defendants' ship, the Wagon Mound, was taking on furnace oil in Sydney Harbour. Through the carelessness of their servants a large quantity of oil was spilled into the bay and drifted to the plaintiffs' wharf about 200 yards away, where welding was going on. The plaintiffs stopped work, were advised that the oil could not be ignited on water, and resumed. Molten metal from the welding fell on floating cotton waste, which acted as a wick, set the oil alight, and destroyed the wharf.

Held. The defendants were not liable for the fire damage. Although some damage by fouling of the wharf was foreseeable, damage by fire was not, and a defendant is liable only for consequences of a kind that a reasonable man would have foreseen. The Board expressly disapproved Re Polemis (1921), which had held a defendant liable for all direct consequences of his negligent act however unforeseeable.

The eggshell skull rule survives Wagon Mound. Once damage of a foreseeable kind is established, the defendant takes his victim as he finds him and answers for its full extent, however unusual the plaintiff's susceptibility: Smith v Leech Brain and Co [1962] 2 QB 405, where a negligent burn on the lip turned a pre-malignant condition cancerous and the employers were held liable for the death.

In each case the proviso allows the appellate authority to entertain an appeal after thirty days if it is satisfied that there was sufficient cause for not filing it in time.

Separately, Section 21(b) gives the National Commission revisional jurisdiction over a State Commission where it has exercised a jurisdiction not vested in it, failed to exercise a jurisdiction vested in it, or acted illegally or with material irregularity.

What is appealable, and what is not. An appeal lies only from an order made in ORIGINAL jurisdiction. An order made by the State Commission in appeal from a District Forum is not further appealable to the National Commission; the only route against it is revision under Section 21(b), which is narrower, being confined to jurisdictional error and material irregularity. Getting that distinction right is what the question is testing.

Powers of the appellate authority. It may confirm, modify or set aside the order, or remand the matter for fresh disposal. Section 22A empowers the National Commission to set aside an ex parte order of a State Commission.

The governing authority is the Gloucester Grammar School Case (1410), where the defendant schoolmaster set up a rival school in the same town, the plaintiff's fees fell from 40 pence to 12 pence, and the action failed because the defendant had done nothing unlawful. Mogul Steamship Co v McGregor, Gow & Co (1892) applied the same principle to a shipping combine that undercut a rival out of business, and the Indian case is Ushaben v Bhagyalaxmi Chitra Mandir (AIR 1978 Guj 13).

The answer would change only if X had used unlawful means: false statements about B's classes would be injurious falsehood or defamation, and persuading B's teachers to break their contracts would be inducement of breach of contract.

(ii) Give two points of distinction between injuria sine damnum and damnum sine injuria.

(i) Can he file case against Charity trust?

Yes, in tort. X may sue the charitable trust in negligence, and the trust is vicariously liable for the negligence of the surgeon and staff it engaged for the camp. A charity enjoys no immunity in Indian law from liability for the torts of its servants; the fact that the treatment was given free affects the consumer remedy, not the tortious one.

To succeed X must show the three ingredients of negligence: a duty of care, which a doctor owes his patient from the moment he undertakes treatment; a breach of that duty, judged by the standard in Bolam v Friern Hospital Management Committee (1957), adopted in India in Jacob Mathew v State of Punjab (2005) 6 SCC 1, namely the standard of the ordinary competent practitioner exercising that particular art; and damage caused by the breach.

(ii) What is deficiency in service? Explain.

"Deficiency" is defined in Section 2(1)(g) of the Consumer Protection Act, 1986 as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force, or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Three points follow. The standard against which the service is measured is set either by law or by the undertaking the provider himself gave. The definition covers not only failure to perform but imperfect performance. And it applies to a service, which Section 2(1)(o) defines widely to include banking, insurance, transport, housing construction, entertainment and medical treatment, but which excludes services rendered free of charge or under a contract of personal service.

Established instances of deficiency are a surgeon leaving a swab inside the patient, a bank dishonouring a properly drawn cheque, a builder delivering possession years late, an airline failing to inform passengers of a change of schedule, and an insurer repudiating a claim on a ground not open to it.

(i) Is Mr. X liable under contract or tort? Explain.

The liability, if any, would be in tort, under the principle of vicarious liability of a master for the torts of his servant, expressed in the maxims respondeat superior and qui facit per alium facit per se. It could not be in contract, because the victim of Y's fraud has no contract with X; X's only contract is with Y, and a contract binds only the parties to it.

But on these facts X is not liable. Vicarious liability arises only where the servant's wrongful act was committed in the course of employment, and that means either an act authorised by the master or an unauthorised mode of doing an authorised act. A fraud committed after working hours, on the guard's own account, having nothing to do with guarding the premises, is neither. It is what the cases call a frolic of his own.

Lloyd v Grace, Smith is the case a student must distinguish here, and the distinction is that the clerk's fraud was in the very transaction he was employed to conduct, whereas Y's fraud has no connection with the work of guarding and was committed outside working hours. X would be liable only if the fraud were shown to have been committed in the course of Y's duties as a guard, for example by using access to X's clients which the post gave him.

X remains liable for his own negligence if he employed a guard he knew or ought to have known was dishonest, but that is primary liability for negligent selection, not vicarious liability.

(ii) Is Mr. X liable under crimes? Give two points of distinction between crime and tort.

No. Criminal liability is personal. There is no general doctrine of vicarious liability in criminal law, and a master is not punished for the crime of his servant unless he authorised it, abetted it, or a statute expressly imposes liability on him. Y alone answers for the fraud, which would be cheating under the Indian Penal Code.

Two points of distinction between crime and tort:

The judicial correction: the last opportunity rule. To soften the rule the courts developed the doctrine of last opportunity, that whichever party had the last opportunity of avoiding the accident by reasonable care is liable for the whole loss. Davies v Mann (1842) is the case: the plaintiff negligently left his donkey fettered on the highway; the defendant drove his wagon into it at speed. The defendant was liable, because he had the last chance of avoiding the collision.

The rule was extended in British Columbia Electric Railway Co v Loach (1916) to the doctrine of constructive last opportunity: the defendant's tram had defective brakes, so it did not in fact have the last chance, but it would have had one but for its own earlier negligence, and it was held liable.

The statutory solution: apportionment. The doctrine of last opportunity was itself unsatisfactory, because it still gave an all-or-nothing result. The Law Reform (Contributory Negligence) Act, 1945 in England replaced it with apportionment: where a person suffers damage partly through his own fault and partly through the fault of another, the claim is not defeated, but the damages are reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility.

1. Doctrine of alternative danger, or the dilemma principle. A plaintiff put in a position of danger by the defendant's negligence is not guilty of contributory negligence merely because, in the agony of the moment, he chose a course which turned out badly. In Jones v Boyce (1816) a passenger jumped from a coach he reasonably believed about to overturn and broke his leg; he recovered. The Indian case is Shyam Sunder v State of Rajasthan (1974) 1 SCC 690, where a workman jumped from a burning truck and was killed; the State was liable.
2. Rescuers. A person who is injured while attempting a rescue made necessary by the defendant's negligence is not met by contributory negligence or by volenti. Haynes v Harwood (1935): a policeman injured stopping a bolting horse in a crowded street recovered in full. The Indian illustration is the rescue of a child from a well, and the principle is that danger invites rescue.
3. Children. A child is judged by the standard of a child of that age, not of an adult. Yachuk v Oliver Blais Co (1949): petrol was sold to a boy of nine who was burned playing with it; the defendants were liable, because a child of that age could not appreciate the risk. The Indian rule is the same, and very young children are treated as incapable of contributory negligence altogether.

Who is a consumer. Section 2(1)(d) of the Consumer Protection Act, 1986 defines "consumer" in two limbs.

In relation to goods, a consumer is any person who buys any goods for a consideration which has been paid or promised, or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the buyer himself, when such use is made with the approval of the buyer. It does not include a person who obtains goods for resale or for any commercial purpose.

In relation to services, a consumer is any person who hires or avails of any services for a consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hired them, when the services are availed of with the approval of that person. Services availed of for a commercial purpose are excluded.

1. To protect the six rights of the consumer, which Section 6 enumerates as the objects of the Central Consumer Protection Council:

• the right to safety against goods and services hazardous to life and property;
• the right to be informed of the quality, quantity, potency, purity, standard and price of goods and services, so as to protect against unfair trade practices;
• the right to choose from a variety of goods and services at competitive prices;
• the right to be heard, and to be assured that consumer interests will receive due consideration at appropriate forums;
• the right to seek redressal against unfair trade practices, restrictive trade practices or unscrupulous exploitation; and
• the right to consumer education.

4. To supplement and not to supplant existing remedies. Section 3 provides that the Act is in addition to and not in derogation of the provisions of any other law, so the consumer retains his ordinary civil remedy and may choose between them.
5. To give relief that fits consumer disputes. Section 14 allows the Forum to order removal of the defect, replacement of the goods, return of the price, payment of compensation for loss or injury including punitive damages, discontinuance of an unfair trade practice, withdrawal of hazardous goods, and issue of corrective advertisements.

• Territorial jurisdiction (Section 11(2)). The Forum within whose limits the opposite party actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or, where there is more than one opposite party, where any of them so resides with the permission of the Forum or the acquiescence of the others; or where the cause of action wholly or in part arises.
• Procedure (Section 13). Complaint referred to the opposite party, version within thirty days extendable by fifteen; goods sent for analysis to an appropriate laboratory where necessary; decision on evidence and affidavit; the Forum has the powers of a civil court in respect of summoning witnesses, discovery, production of documents and receiving evidence on affidavit, and its proceedings are judicial proceedings under Sections 193 and 228 of the Indian Penal Code.
• Reliefs (Section 14). Removal of defect, replacement of goods, return of the price, compensation for loss or injury including punitive damages, discontinuance of an unfair or restrictive trade practice, withdrawal of hazardous goods, corrective advertisement, and costs.

2. State Consumer Disputes Redressal Commission (Sections 16 to 19).

• Jurisdiction (Section 21). Original jurisdiction where the value exceeds Rs. 1 crore; appellate jurisdiction over the State Commissions; and revisional jurisdiction over a State Commission on the three familiar grounds.
• Appeal (Section 23). To the Supreme Court within thirty days from an order made in original jurisdiction, on a deposit of fifty per cent or Rs. 50,000, whichever is less.

Finality and execution. Under Section 24 an order becomes final if no appeal is preferred. Under Section 25 it is executable as a decree of a civil court, and under Section 27 failure to comply is punishable with imprisonment of one month to three years or fine of Rs. 2,000 to Rs. 10,000, or both.

Who may complain, Section 2(1)(b). A consumer; a registered voluntary consumer association; the Central Government or any State Government; one or more consumers where there are numerous consumers having the same interest, with the permission of the Forum under Section 12(1)(c); and, on the death of a consumer, his legal heir or representative.

Frivolous complaints, Section 26. A complaint found frivolous or vexatious is dismissed, for reasons recorded in writing, with costs up to Rs. 10,000 payable to the opposite party.

3. The eggshell skull rule. Once damage of a foreseeable kind is established, the defendant takes his victim as he finds him and is liable for the whole extent of the harm even if the plaintiff's unusual weakness made it far worse. Smith v Leech Brain & Co (1962).
4. Mitigation. The plaintiff must take reasonable steps to reduce his loss, and cannot recover for loss he could reasonably have avoided; but he is not required to take steps beyond his means or to run further risks.

The heads of assessment in a personal injury claim. The court separates pecuniary from non-pecuniary loss.

• Pecuniary: medical, hospital and transport expenses actually incurred; loss of earnings up to trial; loss of future earnings or loss of earning capacity, arrived at by taking the annual loss (the multiplicand), adjusting it for future prospects and personal expenses, and applying a multiplier fixed by reference to the age of the injured person; and cost of future care and attendance.
• Non-pecuniary: pain and suffering, both past and future; loss of amenities of life, that is the loss of the capacity to do things the plaintiff could do before; and loss of expectation of life.

3. Compensatory or ordinary damages. The main class, measured by the actual loss under the heads set out above.
4. Aggravated damages. An increased compensatory award where the defendant's manner of committing the wrong, or his conduct afterwards, injured the plaintiff's feelings, pride or dignity. They remain compensatory in character.
5. Exemplary, punitive or vindictive damages. Awarded to punish the defendant and to deter others, over and above compensation. Rookes v Barnard (1964) restricted them in England to three categories: (a) oppressive, arbitrary or unconstitutional acts by servants of the government; (b) conduct calculated by the defendant to make a profit which may exceed the compensation payable to the plaintiff; and (c) where expressly authorised by statute. Cassell and Co v Broome (1972) affirmed the categories.
6. Prospective or future damages. Compensation for loss which is reasonably anticipated to result in the future from the same tort. They are awarded once and for all, because the law does not permit a single cause of action to be split, and a plaintiff cannot come back when his condition deteriorates.

Definition. Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid him, or which exposes him to hatred, contempt or ridicule, without lawful justification.

The interest protected is reputation, which is what others think of the plaintiff, and not his own feelings, so a statement which insults him privately is not defamation.

The two forms.

• Libel is defamation in a permanent form, such as writing, print, a picture, a statue, an effigy, a film or a broadcast.
• Slander is defamation in a transient form, principally the spoken word or a gesture.

1. The statement must be defamatory. The test is objective, judged by the standard of right-thinking members of society. The words may be defamatory on their face, or by innuendo, that is by a secondary meaning which the words carry to persons with knowledge of special facts. In Cassidy v Daily Mirror Newspapers (1929) a photograph captioned as showing a man and his fiancée was defamatory of his actual wife, because those who knew her drew the inference that she was not married to him.
2. The statement must refer to the plaintiff. It is enough that reasonable people would understand it to refer to him; the defendant's intention is irrelevant, as Hulton v Jones (1910) established, where a fictional "Artemus Jones" was held to defame a real barrister of that name. A statement about a class is not actionable unless the class is so small, or the circumstances so pointed, that it can be taken to refer to the plaintiff individually.
3. The statement must be published, that is communicated to at least one person other than the plaintiff. Dictating a defamatory letter to a typist is publication; sending it in a sealed envelope to the plaintiff himself is not. Every repetition is a fresh publication, and the repeater is liable as well as the originator.

• Absolute privilege gives complete immunity however false or malicious the statement: parliamentary proceedings (Articles 105(2) and 194(2) of the Constitution); judicial proceedings, covering judges, counsel, parties and witnesses; and State communications made by one officer of State to another in the course of official duty.
• Qualified privilege protects a statement made on an occasion where the maker has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it, or where both share a common interest; it also covers fair and accurate reports of parliamentary and judicial proceedings. Qualified privilege is defeated by proof of malice, and that is the whole of the difference between the two kinds.

1. Apology. Under the Libel Acts an apology published at the earliest opportunity, with payment into court, is a defence to an action against a newspaper or periodical where the libel was inserted without actual malice and without gross negligence. In India an apology goes principally to mitigation of damages.

Definition. Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. The word comes from the French nuire, to injure, and the tort protects the enjoyment of land, as distinct from trespass, which protects possession of it.

Trespass and nuisance distinguished. Trespass is a direct physical interference with possession and is actionable per se; nuisance is a consequential interference with enjoyment and generally requires proof of damage. Planting a tree on the neighbour's land is trespass; allowing its roots or branches to grow over the boundary is nuisance.

Kinds of nuisance.

2. The interference must be with the use or enjoyment of land, or with some right over it, either by causing physical damage to the property, or by causing discomfort or inconvenience to the occupier.
3. Damage. Unlike trespass, nuisance is generally not actionable per se, and damage must be proved, though in the case of interference with an easement the law presumes it.

The factors which decide reasonableness.

• The nature of the harm. In St Helen's Smelting Co v Tipping (1865) the House of Lords drew the fundamental distinction: where the nuisance causes material injury to property, the character of the locality is no defence; where it causes only personal discomfort, the locality is highly relevant.
• Locality. As Thesiger LJ said in Sturges v Bridgman (1879), what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. A resident of an industrial area cannot expect the quiet of a residential one.
• Duration and continuity. A nuisance is usually a continuing state of affairs; an isolated act rarely qualifies, though it may if it results from a dangerous state of affairs on the defendant's land.

1. Prescription. A right to commit a private nuisance may be acquired as an easement by twenty years' uninterrupted continuance as of right, under Section 26 of the Limitation Act, 1963 read with Section 15 of the Indian Easements Act, 1882. The twenty years run from the date the activity became a nuisance to the plaintiff, not from the date it began. That is exactly why the defence failed in Sturges v Bridgman: the confectioner's machinery had been running for more than twenty years, but it only became a nuisance when the physician built his consulting room at the end of his garden.
2. Statutory authority. Where a statute authorises the very thing complained of, the doing of it is not actionable, provided the defendant has acted without negligence and the interference is the inevitable consequence of what the statute authorised. The defence is stronger where the statute imposes an absolute duty than where it confers a conditional power. Vaughan v Taff Vale Railway (1860) is the classic case.
3. Consent of the plaintiff, or volenti non fit injuria.
4. Act of God or vis major, and act of a stranger over whom the defendant had no control, provided the defendant, once he knows of it, takes reasonable steps to abate it; if he adopts or continues it, he becomes liable (Sedleigh-Denfield v O'Callaghan, 1940).

Remedies. The remedies are damages; an injunction, which is discretionary and is the relief usually sought because the plaintiff wants the nuisance stopped; and abatement, the self-help remedy of removing the nuisance oneself, which the law permits but does not encourage, requires notice save in an emergency, and must be exercised without causing unnecessary damage or breach of the peace.