BLS LLB 5 Years Sem 5 Torts 2018-19 Question Paper with Solutions

A tort is a civil wrong, other than a breach of contract or breach of trust, for which the remedy is an action for unliquidated damages. The word comes from the Latin tortum, meaning twisted or crooked, through the French tort, a wrong.

Salmond's definition is the one just given. Winfield's is fuller: "Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages."

Extra-judicial remedies are those which the injured party may take by his own act, without going to court. They are also called remedies by self-help.

The recognised ones are:

1. Self-defence, the use of reasonable force to defend one's own person or that of another;
2. Expulsion of a trespasser from land, using no more force than is necessary and after a request to leave;
3. Re-entry on land by a person wrongfully dispossessed, peaceably and without excessive force;
4. Recaption of goods, retaking one's own chattel from the wrongdoer;
5. Abatement of nuisance, removing or ending the nuisance oneself; and
6. Distress damage feasant, detaining a chattel or animal which has strayed onto one's land and done damage, until compensation is paid.

Malfeasance is the doing of an act which is wrongful and unlawful in itself, an act which the defendant had no right to do at all, such as a trespass or an assault.

Misfeasance is the improper or negligent performance of an act which is in itself lawful, such as a contractor who is entitled to dig up a road but leaves the trench unlit and unguarded.

The third member of the group is non-feasance, the omission to do an act which the defendant was under a duty to do.

The scienter rule fixes the liability of the keeper of an animal for damage done by it, and turns on his knowledge of the animal's dangerous disposition ("scienter" is Latin for "knowingly").

Animals are divided into two classes:

• Ferae naturae, animals of a naturally dangerous species, such as a lion, tiger, elephant, bear or monkey. Knowledge of the vicious propensity is conclusively presumed, and the keeper is strictly liable for the damage the animal does.
• Mansuetae naturae, animals of a harmless domestic species, such as a dog, horse, cow or sheep. The keeper is liable only if the plaintiff proves that he knew of the vicious propensity of that particular animal.

Section 2(1)(b) of the Consumer Protection Act, 1986 defines "complainant" as meaning:

1. a consumer; or
2. any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or
3. the Central Government or any State Government; or
4. one or more consumers, where there are numerous consumers having the same interest; or
5. in case of death of a consumer, his legal heir or representative,

who or which makes a complaint.

• Private nuisance: interference with the use or enjoyment of the land of a particular occupier, actionable at his suit.

Essentials of private nuisance. (i) An unreasonable interference; (ii) with the use or enjoyment of land or a right over it; (iii) causing damage, either physical injury to the property or discomfort to the occupier.

Factors deciding reasonableness.

1. Nature of the harm. St Helen's Smelting Co v Tipping (1865): where there is material injury to property, the character of the locality is no defence; where there is only personal discomfort, locality is highly relevant.
2. Locality. Sturges v Bridgman (1879): what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.
3. Duration and continuity: a nuisance is normally a continuing state of affairs.

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

Goods. 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, when such use is made with the approval of the buyer. It excludes a person who obtains goods for resale or for any commercial purpose.

Services. 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 hires them, when the services are availed of with the approval of that person. Services availed of for a commercial purpose are excluded.

The Explanation provides that "commercial purpose" does not include use by a person of goods bought and used by him, or services availed by him, exclusively for the purpose of earning his livelihood by means of self-employment.

Four propositions follow.

The Central Consumer Protection Council is the apex advisory body constituted under Section 4 of the Consumer Protection Act, 1986.

Constitution (Section 4). The Central Government shall, by notification, establish the Council, consisting of:

• the Minister in charge of consumer affairs in the Central Government, who shall be its Chairman; and
• such number of other official and non-official members representing such interests as may be prescribed. Under the Consumer Protection Rules, 1987 the Council had up to 150 members, drawn from Members of Parliament, representatives of Central Government departments, the Commission for Scheduled Castes and Scheduled Tribes, consumer organisations, women, farmers, trade and industry, and persons capable of representing consumer interests.

Procedure (Section 5). The Council shall meet as and when necessary, but at least one meeting shall be held every year. It meets at such time and place as the Chairman thinks fit and observes such procedure in regard to the transaction of its business as may be prescribed.

The Six Carpenters' Case (1610) 8 Co Rep 146a is the authority for the doctrine of trespass ab initio, and for the limits on it.

Facts. Six carpenters entered an inn at Cripplegate, a house which was open to the public and which they therefore had a right to enter by authority of law. They ordered and were served bread and wine, and paid for them. They then ordered and consumed more wine, and refused to pay for it. The innkeeper sued them in trespass, arguing that by refusing to pay they had abused their authority and so became trespassers from the beginning.

Held. The carpenters were not liable as trespassers ab initio. The court laid down two rules.

1. Where an entry, authority or licence is given by the law, and the person abuses it, he becomes a trespasser ab initio, that is his original entry is retrospectively treated as wrongful. Where the authority or licence is given by the party himself, an abuse of it does not make the person a trespasser ab initio; the party's remedy is an action for the particular wrong done.

Why the fiction exists. Where authority is given by the party, the occupier chose to admit the entrant, can revoke the licence and can sue on the terms he granted. Where it is given by law, he never chose to admit him, has no contract with him and cannot revoke a statutory power, so the fiction gives him a single complete remedy in trespass and places the whole loss on the person who abused a public authority.

• Byrne v Boadle (1863): a barrel of flour rolled out of a first floor window of the defendant's warehouse and struck the plaintiff in the street. Held, the barrel could not have fallen without negligence, and the plaintiff need prove nothing more.
• Scott v London and St Katherine Docks Co (1865): six bags of sugar fell from the defendant's crane onto a customs officer. Erle CJ stated the classic formulation of the conditions.
• Municipal Corporation of Delhi v Subhagwanti (AIR 1966 SC 1750): the Clock Tower in Chandni Chowk, eighty years old and beyond its normal life, collapsed and killed people. The Supreme Court applied the maxim and held the Corporation liable, because the structure was in its exclusive control and such collapses do not occur without want of care.
• Pushpabai Purshottam Udeshi v Ranjit Ginning and Pressing Co (1977) 2 SCC 745: the Supreme Court applied the maxim where a car left the road and struck a tree, holding that the normal rule that the plaintiff must prove negligence is displaced where the circumstances themselves point to it.

The four slanders actionable per se in English law are an imputation of a criminal offence punishable with imprisonment; of a contagious or infectious disease such as would cause others to shun the plaintiff; of unchastity or adultery to a woman or girl under the Slander of Women Act, 1891; and of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business.

The position in India. The distinction has been held to be of little practical importance. The High Courts have generally taken the view that slander is also actionable per se in India, following Hirabai Jehangir v Dinshaw Edulji (ILR 1927 Bom 167), on the ground that the English rule rests on historical accidents of jurisdiction between the common law and ecclesiastical courts which never applied here. Under Section 499 of the Indian Penal Code both libel and slander are equally the offence of defamation.

(i) Who is liable? Why?

Asha is liable to Divya in negligence.

These are the facts of Byrne v Boadle (1863) 2 H and C 722, where a barrel of flour rolled out of a first floor window of the defendant's warehouse and struck a passer-by in the street. The plaintiff could not say how or why the barrel fell, and it was argued that he had proved no negligence. Pollock CB held that a barrel of flour cannot roll out of a warehouse window without negligence, and that the accident itself was evidence of it.

The principle is res ipsa loquitur, the thing speaks for itself. Its three conditions are satisfied here:

1. Exclusive control. The window, the premises and the barrel were in Asha's exclusive control or that of persons for whom she is responsible.

(ii) What is contributory Negligence?

Contributory negligence is the failure of the plaintiff to take reasonable care of his own safety, which contributes, along with the defendant's negligence, to the damage he has suffered. It is not the breach of a duty owed to the defendant; it is a want of care by the plaintiff for himself.

At common law it was a complete defence: Butterfield v Forrester (1809), where the plaintiff rode violently into an obstruction he could have seen, and recovered nothing. The harshness of that rule was softened by the last opportunity rule in Davies v Mann (1842), that the party who had the last chance of avoiding the accident bears the loss.

The modern rule is apportionment. Under the Law Reform (Contributory Negligence) Act, 1945 in England the claim is not defeated, but the damages are reduced to the extent the court thinks just and equitable having regard to the plaintiff's share in the responsibility. India has no general statute, but the courts apply apportionment as a rule of justice, equity and good conscience: Municipal Corporation of Greater Bombay v Laxman Iyer (2003) 8 SCC 731.

(i) Is there any remedy available to Mr. 'B'? Why?

B has a remedy against the conductor A personally, but not against the Omnibus company.

These are the facts of Beard v London General Omnibus Co [1900] 2 QB 530. At the end of a journey, in the driver's absence, the conductor drove the omnibus in order to turn it round for the return journey and negligently injured the plaintiff. The Court of Appeal held the company was not liable, because driving the bus was no part of the conductor's employment, and there was no evidence that he had any authority, express or implied, to drive.

The governing principle is that a master is liable for the tort of his servant only where it was committed in the course of employment, and that means either:

(ii) What would be the effect if the driver of the bus is driving the bus? Why?

The company would be liable.

If the driver were driving, he would be doing the very act he was employed to do, and any negligence in doing it would be an unauthorised mode of doing an authorised act. That falls squarely within the course of employment and the master is vicariously liable.

Limpus v London General Omnibus Co (1862) 1 H and C 526 puts the point at its strongest. A driver, contrary to express instructions not to race or obstruct other omnibuses, drove across a rival bus and caused a collision. The company was held liable, because the driver was doing his authorised work, badly and disobediently, but still his authorised work. A prohibition on the manner of doing the work does not take the act outside the employment; only a prohibition on the kind of act does.

Contrast Storey v Ashton (1869) LR 4 QB 476, where a carman, having finished his round, drove off on a private errand of his own and injured the plaintiff. The master was not liable, because the servant had embarked on a new and independent journey, a frolic of his own.

2. There is a deficiency in service. Section 2(1)(g) defines deficiency as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under law or has been undertaken to be performed in pursuance of a contract. An airline undertakes to carry the passenger at the scheduled time, and it is under a duty to communicate a change of schedule to a passenger whose contact details it holds. Failure to inform is a shortcoming in the manner of performance and is therefore a deficiency, quite apart from the delay itself.
3. There is a complaint. Under Section 2(1)(c) an allegation in writing that the services hired suffer from deficiency is a complaint, and Ravi may file it under Section 12.

What the airline cannot excuse is not telling the passenger. It held Ravi's booking and his contact details; the change was known to it; and a single message would have saved him six to seven hours at the airport. That omission is a shortcoming in the manner of performance and it is what makes the deficiency.

Two supports for the answer. Section 2(1)(r) would additionally be attracted if the airline had advertised a schedule it had no intention or ability to keep, which would be an unfair trade practice. And the Civil Aviation Requirements issued by the Directorate General of Civil Aviation (Section 3, Series M, Part IV) oblige airlines to provide passengers with information and, on delays beyond stated thresholds, with meals, refreshments and in some cases hotel accommodation or a refund; a breach of those requirements is a breach of a standard "required to be maintained by or under any law", which is the first limb of the definition of deficiency.

The measure of compensation is the actual loss and the mental agony and inconvenience proved, and Indian consumer commissions have consistently awarded modest but real sums for avoidable airport waits caused by uncommunicated schedule changes.

When the plaintiff has proved the ingredients of a tort, the defendant may still escape liability by establishing a general defence, that is a defence available across the law of torts rather than one peculiar to a particular tort. The recognised general defences are:

1. Volenti non fit injuria (consent). Where the plaintiff has freely and voluntarily, with full knowledge of the nature and extent of the risk, agreed to run it, no action lies. Knowledge alone is insufficient: Smith v Baker (1891), where a workman who knew stones were being swung overhead was held not to have consented, because he worked on under economic compulsion. Compare Hall v Brooklands Auto Racing Club (1933), where a spectator at a motor race was held to have accepted the inherent risks, and Padmavati v Dugganaika (1975 ACJ 222) in India.

Limits. The consent must be free, so it fails if obtained by fraud (Hegarty v Shine, 1878), or where the plaintiff acted under legal or moral compulsion, as a rescuer does (Haynes v Harwood, 1935, the bolting horse case). It is no defence to a breach of statutory duty, and it does not protect the defendant against an unlawful act.

4. Act of God (vis major). An operation of natural forces, without human intervention, so extraordinary that no human foresight could reasonably anticipate it and no reasonable care could guard against it. Nichols v Marsland (1876), where extraordinary rainfall burst the defendant's ornamental lakes, is the successful case; Greenock Corporation v Caledonian Railway (1917), where the rainfall was heavy but not unprecedented, is the failed one. Ramalinga Nadar v Narayana Reddiar (AIR 1971 Ker 197) holds that the act of an unruly mob is the act of man, not of God.

5. Private defence. A person may use reasonable force to protect his own person or property, or that of another. The force must be proportionate to the threat: shooting a trespasser who is merely walking across a field is not private defence, and setting a spring gun without notice is not (Bird v Holbrook).

6. Mistake. As a rule mistake, whether of fact or of law, is no defence in tort. A person who trespasses on land honestly believing it to be his own is still a trespasser. The exceptions are torts in which the defendant's state of mind is itself an ingredient, such as malicious prosecution and deceit, and the qualified privilege defence in defamation, where honest belief negatives malice.

10. Parental and quasi-parental authority. A parent, and a schoolmaster in loco parentis, may administer reasonable correction and restraint.

11. Acts causing slight harm: de minimis non curat lex. The law does not concern itself with trifles.

"We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."

On appeal, Lord Cairns LC affirmed the rule and added the further requirement that the defendant's use of the land must have been a non-natural use, that is a special use bringing with it increased danger, and not the ordinary use of land or such use as is proper for the general benefit of the community.

Essentials of the rule. Three must be established.

1. A dangerous thing. The defendant must have brought onto his land and kept there something likely to do mischief if it escapes. Water, gas, electricity, explosives, fire, poisonous fumes, vibrations, a flagpole, a chair-o-plane in a fair and even inflammable materials have all qualified.

3. Consent of the plaintiff (volenti). Where the plaintiff has consented to the accumulation, expressly or impliedly. This covers the common benefit cases, where the thing is kept for the benefit of both plaintiff and defendant, such as a common water supply in a building.
4. Act of a third party. Where the escape is caused by the unforeseeable act of a stranger over whom the defendant has no control. Box v Jubb (1879); Rickards v Lothian (1913).
5. Statutory authority. Where an enactment authorises the accumulation, subject to the terms of the statute and the absence of negligence. Green v Chelsea Waterworks Co (1894).

The rationale. Four reasons are given for imposing liability without fault:

1. He who creates an abnormal risk for his own benefit should bear its cost. The defendant collects the dangerous thing for his own purposes; it is right that the loss it causes should fall on him rather than on a neighbour who obtained no advantage from it.
2. Difficulty of proof. In an escape from a large industrial installation the plaintiff can rarely prove what went wrong inside it. Requiring proof of negligence would in practice mean no remedy at all.

The differences from Rylands v Fletcher are three, and they are the marks in this part of the answer: no exceptions are admitted, no escape from the premises is required so that workers inside are covered, and the measure of compensation is to be correlated to the magnitude and capacity of the enterprise, so that it has a deterrent effect.

The doctrine was applied in Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212, the Bichhri case, together with the polluter pays principle, and it lies behind the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, the Public Liability Insurance Act, 1991, which requires occupiers handling hazardous substances to insure and provides no-fault relief, and the National Green Tribunal Act, 2010.

2. Contemptuous damages. The smallest coin in the realm, awarded where the plaintiff had a technical legal right but the court disapproves of his conduct or of his having brought the action at all. The plaintiff is usually deprived of his costs as well. The difference from nominal damages is not the amount but the reason: nominal damages say the right was worth vindicating, contemptuous damages say the suit should not have been brought.

3. Compensatory or ordinary damages. The principal class, measured by the plaintiff's actual loss. In a personal injury case the court separates:

• Pecuniary loss: medical, hospital and travel expenses; loss of earnings to the date of trial; loss of future earnings or of earning capacity, calculated by taking the annual loss (the multiplicand), adding a percentage for future prospects, deducting personal expenses, and applying a multiplier fixed by reference to age; and the cost of future nursing and attendance.
• Non-pecuniary loss: pain and suffering, past and future; loss of amenities of life; and loss of expectation of life.

• conduct calculated by the defendant to make a profit which may well exceed the compensation payable to the plaintiff; and
• where they are expressly authorised by statute.

Cassell and Co v Broome (1972) affirmed the categories. Indian courts have not treated the Rookes v Barnard limits as binding, and have awarded exemplary damages more freely, particularly against the State in the constitutional tort line that begins with Rudul Sah v State of Bihar (1983) 4 SCC 141. Section 14(1)(d) of the Consumer Protection Act, 1986 expressly empowered the forum to award punitive damages.

6. Prospective or future damages. Compensation for loss reasonably expected to arise 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, so a plaintiff cannot return to court when his condition worsens.

7. General damages. Loss which the law presumes to flow from the wrong. They need not be pleaded with particulars or proved in amount, and the court assesses them: pain and suffering, loss of reputation, loss of amenity.

The two maxims express the fundamental proposition that the law of torts protects legal rights, not merely interests, and that the presence or absence of loss is not what decides whether an action lies.

The vocabulary first. Damnum means damage, in the sense of substantial loss of money, comfort, health or the like. Injuria means legal injury, that is the infringement of a legal right. Sine means without.

A. Injuria sine damno: legal injury without actual loss.

This is the infringement of a legal right without any actual damage. It is actionable, because where a legal right is violated the law presumes damage, and the plaintiff need prove none. Torts of this kind are said to be actionable per se, and the leading examples are trespass to land, trespass to the person and libel.

Other illustrations: Marzetti v Williams (1830), where a banker with sufficient funds of the customer in hand refused to honour his cheque and was held liable although the customer suffered no actual loss; and any trespass on land, however harmless, which is actionable without proof of damage.

B. Damnum sine injuria: actual loss without legal injury.

This is actual and substantial damage without the infringement of any legal right. It is not actionable, however heavy the loss, because there is no cause of action at all. The law recognises many ways in which a person may lawfully cause harm to another.

Gloucester Grammar School Case (1410) YB 11 Hen IV of 47 is the classic authority. The defendant schoolmaster set up a rival school in the same town, and because of the competition the plaintiff's fees fell from 40 pence to 12 pence. The action failed: the defendant had done nothing unlawful, and damage caused by lawful competition is not actionable.

Others: Action v Blundell (1843), on drawing away percolating water; Dickson v Reuter's Telegraph Co (1877); and Town Area Committee v Prabhu Dayal (AIR 1975 All 132), where the demolition of an illegally constructed building was held not to found an action, since no legal right of the plaintiff had been infringed.

Comparison.

Composition (Section 10). A President, who is or has been or is qualified to be a District Judge, and two other members who shall be not less than thirty-five years of age, possess a bachelor's degree from a recognised university, and be persons of ability, integrity and standing with adequate knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman. Appointment is by the State Government on the recommendation of a selection committee consisting of the President of the State Commission, the Secretary of the Law Department and the Secretary in charge of consumer affairs. The term is five years or up to the age of 65, whichever is earlier.

Pecuniary jurisdiction (Section 11(1)). Complaints where the value of the goods or services and the compensation claimed does not exceed Rs. 20 lakh.

Territorial jurisdiction (Section 11(2)). Where the opposite party actually and voluntarily resides, carries on business, has a branch office or personally works for gain; or, where there are several opposite parties, where any of them does so with the permission of the Forum or the acquiescence of the others; or where the cause of action wholly or in part arises.

Composition (Section 16). A President who is or has been a Judge of a High Court, appointed by the State Government in consultation with the Chief Justice of the High Court, and not less than two members, one of whom shall be a woman, with the same qualifications as District Forum members. Not more than fifty per cent of the members shall be from among persons having a judicial background.

Jurisdiction (Section 17).

• Original: complaints where the value exceeds Rs. 20 lakh but does not exceed Rs. 1 crore.
• Appellate: appeals against the orders of any District Forum within the State.
• Revisional: to call for the records of and pass appropriate orders in any consumer dispute pending before or decided by a District Forum where it appears that the Forum has exercised a jurisdiction not vested in it, failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity.

Appeal (Section 19). To the National Commission within thirty days from an order made in original jurisdiction, on deposit of fifty per cent of the amount ordered or Rs. 35,000, whichever is less.

Finality, execution and penalty. Under Section 24 an order becomes final where no appeal is preferred. Under Section 25 it may be executed as a decree of a civil court. Under Section 27 failure or omission to comply is punishable with imprisonment of not less than one month and up to three years, or fine of not less than Rs. 2,000 and up to Rs. 10,000, or both.

1. To protect and promote the six rights of the consumer. Section 6 states the objects of the Central Council as the promotion and protection of:

1. the right to safety, against the marketing of goods and services which are hazardous to life and property;
2. the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, so as to protect the consumer against unfair trade practices;
3. the right to choose, that is to be assured, wherever possible, of access to a variety of goods and services at competitive prices;
4. the right to be heard, and to be assured that consumers' interests will receive due consideration at appropriate forums;
5. the right to seek redressal against unfair trade practices, restrictive trade practices or unscrupulous exploitation of consumers; and
6. the right to consumer education.

These six were drawn from the United Nations Guidelines for Consumer Protection, and they are the only place in the Act where its purpose is stated as a list of substantive entitlements.

4. To create a three-tier adjudicatory machinery. The District Forum, State Commission and National Commission under Sections 9 to 23, with defined pecuniary and territorial jurisdiction, a right of appeal at each level, execution as a decree of a civil court under Section 25, and punishment for non-compliance under Section 27.

5. To give remedies suited to consumer disputes. Section 14 goes far beyond damages: removal of defect, replacement, refund of price, compensation including punitive damages, discontinuance of unfair trade practices, withdrawal of hazardous goods, corrective advertisement, and costs. These are remedies a civil court would not ordinarily grant, and they exist because the consumer usually wants the product put right rather than a sum of money.

6. To supplement and not to supplant existing law. Section 3 provides that the Act is "in addition to and not in derogation of the provisions of any other law for the time being in force". The consumer therefore retains his remedies in contract, in tort and under the Sale of Goods Act, and may choose between them. The Supreme Court has consistently held that the existence of an arbitration clause or of another statutory remedy does not oust the consumer forum.