BLS LLB 5 Years Sem 5 Torts 2022-23 Question Paper with Solutions

Volenti non fit injuria means to a willing person no injury is done. It is a general defence: 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 sue for the harm it causes.

Two elements must both be proved: knowledge of the risk and consent to bear it. Knowledge alone will not do, which is why scienti non fit injuria is not the law.

Joint tort-feasors are two or more persons whose conduct causes a single, indivisible injury to the plaintiff, so that in law they are treated as having committed one tort and not several. The recognised categories are principal and agent, master and servant, partners in a firm, and persons acting in furtherance of a common design.

Their liability is joint and several: the plaintiff may sue any one of them or all, and recover the whole of the damages from any one, though he may have only one satisfaction in total.

The rule in Rylands v Fletcher (1868) is subject to five exceptions:

1. Plaintiff's own default, including damage arising from the abnormal sensitivity of his property (Ponting v Noakes, 1894);
2. Act of God, or vis major (Nichols v Marsland, 1876);
3. Consent of the plaintiff, which covers the common benefit cases where the dangerous thing is kept for the benefit of both parties (Carstairs v Taylor, 1871);
4. Act of a third party, that is the unforeseeable act of a stranger over whom the defendant has no control (Box v Jubb, 1879; Rickards v Lothian, 1913); and
5. Statutory authority, where the accumulation is authorised by an enactment and the escape is the inevitable consequence, without negligence (Green v Chelsea Waterworks Co, 1894).

Liability without fault, also called no fault liability, is liability imposed although the defendant neither intended the harm nor was negligent. The plaintiff need prove only that the defendant carried on the activity and that the harm resulted; he need not prove any breach of a duty of care.

It takes three forms in Indian law:

1. Strict liability, the rule in Rylands v Fletcher (1868), subject to five exceptions;
2. Absolute liability, the rule in M C Mehta v Union of India (1987) 1 SCC 395, for hazardous or inherently dangerous industry, subject to no exception; and
3. Statutory no fault liability, most importantly Section 140 of the Motor Vehicles Act, 1988, under which the owner of a vehicle is liable to pay a fixed sum on death or permanent disablement, and Section 140(3) provides that the claimant need not plead or establish any wrongful act, neglect or default.

Ubi jus ibi remedium means "where there is a right, there is a remedy", commonly rendered as there is no wrong without a remedy. Jus here means the legal right to be protected, and remedium the right of action by which it is enforced.

The principle. Wherever the law confers a right, it also confers the means of vindicating and maintaining it, and a redress for its invasion. A right without a remedy would be no right at all, since a right is only as good as the machinery for enforcing it.

The leading case: Ashby v White (1703) 2 Ld Raym 938. The defendant, a returning officer, wrongfully and maliciously refused to register the vote of the plaintiff, a qualified elector. The candidate the plaintiff wished to support was elected in any event, so the plaintiff suffered no actual loss. Holt CJ held the action lay, saying that if the plaintiff has a right he must of necessity have a means to vindicate it, and a remedy if he is injured in the exercise of it, and that want of right and want of remedy are reciprocal. The case is the foundation both of this maxim and of injuria sine damno.

Indian application. Bhim Singh v State of Jammu and Kashmir (1985) 4 SCC 677 is the modern illustration. A member of the Legislative Assembly was wrongfully arrested and detained so as to prevent him attending the session. Although he had been released by the time the case was decided, the Supreme Court awarded Rs. 50,000 as exemplary compensation, saying that the Court would not be doing its duty if it merely declared the violation and passed on. The constitutional tort line, from Rudul Sah v State of Bihar (1983) 4 SCC 141 to Nilabati Behera v State of Orissa (1993) 2 SCC 746, is the maxim applied to fundamental rights.

• Under Section 91 of the Code of Civil Procedure, 1908 a suit for a declaration and injunction in respect of a public nuisance may be brought by the Advocate General, or by two or more persons with the leave of the court, without proof of special damage.
• Standard instances: obstruction of a highway, carrying on an offensive trade, polluting a public water supply, and keeping premises in an insanitary condition.

B. Private nuisance.

An unlawful interference with the use or enjoyment of the land of a particular occupier, or of some right over it. It is actionable at the suit of the person in possession.

Its essentials are: (i) an unreasonable interference; (ii) with the use or enjoyment of land or a right over it; (iii) causing damage, either physical injury to property or substantial discomfort to the occupier.

Private nuisance takes three forms:

1. Nuisance by encroachment on a neighbour's land, for example overhanging branches or spreading roots;

• Abnormal sensitivity: Robinson v Kilvert (1889), where heat damaged exceptionally delicate brown paper but would not have harmed ordinary paper, and the claim failed.
• Malice: Christie v Davey (1893), where a neighbour deliberately banged trays to disrupt music lessons and was restrained. In nuisance the reasonableness of the user is itself an ingredient, so malice can turn a tolerable use into an unreasonable one.

D. Remedies. Damages; injunction, which is what a plaintiff usually wants because it stops the interference; and the extra-judicial remedy of abatement, exercisable on notice, without unnecessary damage, and choosing the less mischievous of two methods.

where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v Fletcher.

Two reasons were given. The enterprise alone has the resource to discover and guard against hazards and dangers, and to provide warning against potential hazards. And it is under an absolute and non-delegable duty to the community to ensure that no harm results to anyone from the hazardous activity it has undertaken for private profit.

The measure of damages. The Court further held that the compensation must be correlated to the magnitude and capacity of the enterprise, because such compensation must have a deterrent effect: the larger and more prosperous the enterprise, the greater the amount payable.

How it differs from strict liability.

Later development. Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212, the Bichhri case, applied absolute liability to chemical units which had poisoned groundwater, and adopted the polluter pays principle, holding the polluter liable both to compensate the victims and to bear the cost of restoring the degraded environment. Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647 read the precautionary principle and the polluter pays principle into Indian law. The statutory expressions of the doctrine are the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, the Public Liability Insurance Act, 1991 and Section 17 of the National Green Tribunal Act, 2010.

"Service" is defined in Section 2(42) as service of any description made available to potential users, and includes, but is not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

The two standards. A service is measured against either the standard imposed by law, such as directions of the Reserve Bank binding a bank or civil aviation requirements binding an airline, or the standard the provider undertook for himself, whether by contract, brochure or advertisement. It is never measured against the complainant's expectations.

Established instances of deficiency:

• a builder delivering possession of a flat years late, or not at all: Lucknow Development Authority v M K Gupta (1994) 1 SCC 243;
• a surgeon leaving a swab inside the patient: Achutrao Haribhau Khodwa v State of Maharashtra (1996) 2 SCC 634;

The new restaurant has used no unlawful means. It has not defamed the old restaurant, not published injurious falsehood about its food, not passed off its business as the old one's, not induced a breach of contract by enticing away staff under contract, and not entered into an unlawful conspiracy. It has simply opened and traded.

The answer would be different only if unlawful means were used. False statements about the old restaurant's hygiene would be injurious falsehood or defamation; adopting a confusingly similar name and get-up would be passing off; persuading its chef to break a subsisting contract would be inducement of breach of contract. On the facts none of these is alleged.

b. Explain the principle involved in this situation.

The principle is damnum sine injuria, that is damage without legal injury: actual and even substantial loss, unaccompanied by the violation of any legal right, is not actionable.

a. Whether Ms. Anita would succeed in suit for damages against hospital? Why?

Yes. Anita will succeed.

Her claim is in negligence, and she must establish three things: a duty of care, a breach of it, and damage caused by the breach. All three are made out.

Anita does not have to prove how it happened. The maxim res ipsa loquitur, the thing speaks for itself, applies, and its three conditions are satisfied: the instrumentality was in the exclusive control of the surgeon and theatre staff; the accident is one which does not ordinarily happen if proper care is used; and the cause is unknown to the plaintiff, who was unconscious throughout. The evidential burden therefore shifts to the hospital to offer an explanation consistent with reasonable care, and there is none available.

The hospital, and not only the surgeon, is liable. A hospital is vicariously liable for the negligence of the surgeons, anaesthetists, nurses and technicians it employs, acting in the course of their employment. The Indian authority is Achutrao Haribhau Khodwa v State of Maharashtra (1996) 2 SCC 634, where a mop was left in the patient's abdomen during a sterilisation operation at a government hospital, peritonitis followed and the patient died. The Supreme Court applied res ipsa loquitur, held the doctors negligent and the State vicariously liable, and rejected the plea of sovereign immunity, since running a hospital is not a sovereign function.

1. the thing causing the damage was under the exclusive control or management of the defendant or of persons for whom he is responsible;
2. the accident is such as in the ordinary course of things does not happen if those who have the management use proper care; and
3. the cause of the accident is unknown, that is there is no evidence explaining how it occurred.

Its effect. It raises an inference of negligence which shifts the evidential burden to the defendant to explain. It does not shift the legal burden, which remains on the plaintiff throughout. It is a rule of evidence, not a rule of law, and it has no application once the actual cause of the accident is established by evidence.

Its authorities. Byrne v Boadle (1863), the barrel of flour rolling out of a warehouse window; Scott v London and St Katherine Docks Co (1865), where six bags of sugar fell from a crane and Erle CJ gave the classic statement of the conditions; Municipal Corporation of Delhi v Subhagwanti (AIR 1966 SC 1750), the collapse of the eighty-year-old Clock Tower in Chandni Chowk; and, on facts identical to this problem, Achutrao Haribhau Khodwa.

2. Absence of lawful justification.
3. The period is immaterial. The tort is actionable per se and needs no proof of damage; duration goes only to the quantum.
4. The means may be physical or by the assertion of authority. A locked door is one way. The assertion of authority by a person the plaintiff is bound to obey, submitted to by the plaintiff, is another, and that is exactly what happens when a school tells a child of seven to stay behind. A child of that age has no practical choice but to obey, and the restraint is therefore real even without a lock.

Is there a lawful justification? The school will rely on the authority of a schoolmaster in loco parentis to impose reasonable discipline. That defence protects reasonable correction and reasonable detention for a disciplinary purpose connected with the child's conduct or education. It fails here on the purpose: the child was detained not for misbehaviour or unfinished work, but as a means of pressing his parents to pay the fees. Using a child's liberty as leverage against a third party is not discipline at all, and the law will not treat it as reasonable.

• Herring v Boyle (1834) held the opposite, on facts closely resembling this problem. A schoolmaster refused to allow a boy to go home with his mother for the holidays until the fees were paid. The boy was not aware of the refusal, which was communicated to the mother only. The Court of Exchequer held there was no false imprisonment, because the child had not been conscious of any restraint. This is the case the examiner has built the problem on.
• Meering v Grahame-White Aviation Co (1919) held the contrary. The plaintiff was asked to go to a room in the defendant's works while a theft was investigated, and two works policemen remained outside, ready to prevent him leaving. He did not know he was being detained. Atkin LJ held that it is false imprisonment, saying that a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic, and that it is not necessary that he should know of the restraint.
• Murray v Ministry of Defence (1988) settled the point in the House of Lords in favour of the Meering view: knowledge is not essential, though a plaintiff who was unaware of the restraint and suffered no harm will recover only nominal damages.

a. Identify the case and the principle involved.

The case is Donoghue v Stevenson [1932] AC 562, and the principle is the manufacturer's duty of care to the ultimate consumer, resting on Lord Atkin's neighbour principle.

Facts of the case. On 26 August 1928 Mrs May Donoghue went to the Wellmeadow Cafe in Paisley with a friend, who bought her a bottle of ginger beer. The bottle was of dark opaque glass and was sealed with a metal cap, so its contents could not be seen or examined. She drank part of it, and when her friend poured out the remainder the decomposed remains of a snail floated out. She suffered shock and severe gastro-enteritis and sued the manufacturer, Stevenson, with whom she had no contract whatever, since her friend had made the purchase.

b. Explain the principle involved.

The principle has three limbs, and each of them is satisfied on Mrs D's facts.

1. The duty arises in tort, independently of contract. Before 1932 it was widely thought that a manufacturer owed duties only to the person he contracted with, so the ultimate consumer, whose contract was with the retailer, had no claim against the only party who could have prevented the harm. Donoghue separated the duty in tort, owed to persons generally, from the duty in contract, owed only to the other party. Mrs D therefore has a claim although she bought nothing and, on the facts of the original case, although a friend paid.
2. The product must reach the consumer in the form in which it left the manufacturer, with no reasonable possibility of intermediate examination. This is why the opaque sealed bottle was decisive. If the container had been transparent, or if the retailer would ordinarily have opened and inspected it, the chain would have been broken and the manufacturer might have escaped.
3. The consumer must suffer injury to person or property caused by the want of care. Mrs D's gastro-enteritis satisfies this.

• Product liability under Chapter VI (Sections 82 to 87) of the 2019 Act, which is the most powerful route now available. A product liability action may be brought against the product manufacturer, product service provider or product seller for harm caused by a defective product, and under Section 84 a product manufacturer is liable if the product contains a manufacturing defect, is defective in design, deviates from manufacturing specifications, does not conform to an express warranty, or fails to contain adequate instructions or warnings. Under Section 84(2) he is liable on an express warranty even if he proves he was not negligent or fraudulent.
• Also, if the label made claims the product did not answer to, an unfair trade practice under Section 2(47), and offences under the Food Safety and Standards Act, 2006.

A. Why a new Act was needed.

The Consumer Protection Act, 1986 was a landmark, but by 2019 the market it was written for had disappeared. Four changes drove the replacement:

1. E-commerce. The 1986 Act was drafted for a transaction across a counter. It said nothing about online marketplaces, aggregators, sellers located in another State or another country, or platforms which take payment but disclaim responsibility for the goods.
2. Advertising. Misleading advertisement and celebrity endorsement had become the main vehicle of consumer harm, and the 1986 Act had no regulator and no power to act on its own motion; everything depended on an individual consumer complaining.
3. Product safety. India had no product liability regime. A consumer injured by a defective product had to prove negligence in a civil court, or fit his case into a complaint about a defect.
4. Delay. Ironically, the machinery created to be fast had itself become congested, and there was no alternative dispute resolution built into it.

• the right to be assured, wherever possible, of access to a variety of goods, products or services at competitive prices;
• the right to be heard and to be assured that consumers' interests will receive due consideration at appropriate fora;
• the right to seek redressal against unfair or restrictive trade practices or unscrupulous exploitation; and
• the right to consumer awareness.

The 1986 Act stated these as the objects of the Councils. The 2019 Act makes them a defined term in the Act itself, which is a change of legal quality, not merely of drafting.

2. To establish a regulator: the Central Consumer Protection Authority. Sections 10 to 27 create the CCPA, to regulate matters relating to violation of consumer rights, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of the public and consumers, and to promote, protect and enforce the rights of consumers as a class. Its powers include:

• inquiry or investigation on its own motion, on a complaint or on the direction of the Central Government (Section 19);

• filing where the complainant resides or personally works for gain (Section 34(2)(d)), which reverses the rule that made the consumer travel to the trader; and
• electronic filing and hearing by video conferencing (Section 38(6A)).

4. To introduce mediation. Chapter V (Sections 74 to 81) establishes a consumer mediation cell attached to each Commission. Under Section 37 the Commission may, at the first hearing or at any later stage, if it appears that there exist elements of a settlement acceptable to both parties, refer the matter to mediation with their written consent. A settlement so recorded is not appealable (Section 81).

7. To strike at unfair contract terms. Section 2(46) defines an "unfair contract" as a contract between a manufacturer or trader or service provider and a consumer which causes significant change in the rights of the consumer, including excessive security deposits, disproportionate penalties, unilateral termination without cause, and the imposition of unreasonable charges. Sections 49(2) and 59(2) empower the State and National Commissions to declare any such term null and void.

8. To deter by penalties. Section 88 punishes non-compliance with an order of the CCPA; Section 89 punishes false or misleading advertisements with imprisonment up to two years and fine up to Rs. 10 lakh, and up to five years and Rs. 50 lakh for a subsequent offence; Sections 90 and 91 punish the manufacture or sale of adulterated or spurious goods, with punishment graded by the injury caused and extending to life imprisonment where death results; Section 72 punishes non-compliance with an order of a Commission.

9. To remain an additional remedy. Section 100 provides that the Act is in addition to and not in derogation of the provisions of any other law, so the consumer retains his remedies in contract and in tort and may choose between them.

Limits. Consent obtained by fraud is no consent (Hegarty v Shine, 1878); consent under legal or moral compulsion is no consent, so a rescuer is not met by the defence (Haynes v Harwood, 1935, the bolting horse); volenti is no answer to a breach of statutory duty, and none to an unlawful act.

2. Plaintiff the wrongdoer: ex turpi causa non oritur actio. No action arises from a base cause. The defence is narrow: the illegality must be connected with the harm, and not every unlawful act by the plaintiff bars him. Bird v Holbrook (1828): a trespasser injured by a spring gun set without notice recovered.

3. Inevitable accident. An accident which could not have been avoided by ordinary care, caution and skill. Stanley v Powell (1891), the pellet glancing off a tree; Brown v Kendall (1850), the fighting dogs; Assam State Cooperative Marketing Federation v Anubha Sinha (AIR 2001 Gau 18). It is no defence to strict liability.

7. Necessity. An act which causes damage but was done to prevent a greater harm is not actionable: throwing cargo overboard to save a ship, pulling down a house to arrest a fire, operating on an unconscious patient. Cope v Sharpe (1912); Leigh v Gladstone (1909). Distinguish private defence, where the plaintiff is the source of the danger, and inevitable accident, where the damage was not intended at all.

8. Statutory authority. Where a statute authorises the very act complained of, the defendant is not liable, provided he acts without negligence and the damage is the inevitable consequence of what was authorised. The authority may be absolute, where the act must be done, or conditional, where it may be done only without infringing private rights. Vaughan v Taff Vale Railway (1860); Hammersmith Railway v Brand (1869); Metropolitan Asylum District v Hill (1881) on the limits of a conditional authority.

9. Judicial and quasi-judicial acts. A judge is not liable for acts done in the discharge of his judicial function, protected in India by the Judicial Officers Protection Act, 1850, and the immunity extends to persons exercising quasi-judicial powers in good faith.

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, that is what others think of the plaintiff, and not his own feelings.

Forms. Libel is defamation in a permanent form addressed to the eye: writing, print, a picture, an effigy, a film, a broadcast. Slander is defamation in a transient form, principally the spoken word or a gesture.

The words may be defamatory on their face, or by innuendo, that is by a secondary meaning conveyed to persons who know extrinsic facts. Cassidy v Daily Mirror Newspapers (1929): a photograph of a man with a woman described as his fiancée was defamatory of his actual wife, because those who knew her inferred she was not married to him. To plead an innuendo the plaintiff must prove the extrinsic facts and that the statement was published to persons who knew them.

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. Hulton v Jones (1910): a humorous article about a fictional "Artemus Jones" was held to defame a real barrister of that name, although the writer had never heard of him.

A statement about a class of persons is not actionable unless the class is so small, or the words so pointed, that they can reasonably be taken to refer to the plaintiff individually. Saying "all lawyers are thieves" defames nobody; saying "the three partners of X and Co are thieves" defames each of them.

3. The statement must be published.

2. Fair comment. A comment, that is an expression of opinion and not an assertion of fact, made honestly and fairly, on a matter of public interest, on facts which are truly stated or sufficiently indicated, and without malice.

The line between fact and comment is the whole of this defence. "He misappropriated the fund" is an assertion of fact and must be justified as true; "his stewardship of the fund is indefensible" is a comment. The comment need not be reasonable in the eyes of the court; it is enough that an honest person could hold it on the facts, however prejudiced or exaggerated. Matters of public interest include the administration of government, the conduct of public officers, the management of public institutions, and works of art submitted to public judgment.

3. Privilege.

• Absolute privilege confers complete immunity, however false the statement and however malicious the maker. It covers parliamentary proceedings (Articles 105(2) and 194(2) of the Constitution), judicial proceedings, protecting judges, counsel, parties and witnesses, and State communications made by one officer of State to another in the course of official duty.

Freedom of speech under Article 19(1)(a) is subject to reasonable restrictions in the interest of, among other things, defamation, under Article 19(2). R Rajagopal v State of Tamil Nadu (1994) 6 SCC 632, the Auto Shankar case, held that no action for damages is maintainable in respect of a publication concerning a public official's discharge of his public duties, even if untrue, unless the official proves that the publication was made with reckless disregard for the truth; and that the protection does not extend to matters unrelated to official duties. Subramanian Swamy v Union of India (2016) 7 SCC 221 upheld the constitutional validity of criminal defamation under Sections 499 and 500 IPC.

• Contemptuous damages: the smallest coin in the realm, where the plaintiff has a technical right but the court disapproves of his suing. He is usually refused his costs as well.
• Compensatory or ordinary damages: measured by the actual loss, both pecuniary (expenses, loss of earnings, loss of future earning capacity by the multiplicand and multiplier method) and non-pecuniary (pain and suffering, loss of amenities, loss of expectation of life).
• Aggravated damages: an increased compensatory award where the manner of the wrong, or the defendant's conduct afterwards, injured the plaintiff's feelings and dignity.
• Exemplary, punitive or vindictive damages: awarded to punish and deter, not to compensate. Rookes v Barnard (1964) confined them in England to three categories: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated to make a profit exceeding the compensation payable; and where authorised by statute. Indian courts have not treated those limits as binding, and have awarded exemplary sums against the State in the constitutional tort line beginning with Rudul Sah v State of Bihar (1983) 4 SCC 141.

• Prohibitory, restraining a wrongful act; and mandatory, compelling the defendant to undo what he has done, for example to pull down a wall or remove an obstruction.

The court weighs the balance of convenience, the plaintiff's conduct and delay, and whether the injury is trifling; Section 41 of the Specific Relief Act lists the cases in which an injunction is refused. Where the injury is small and can be estimated in money, the court may award damages in lieu of an injunction.

3. Specific restitution of property.

Where the plaintiff has been wrongfully dispossessed of movable or immovable property, he may recover the property itself rather than its value. For immovable property, Section 6 of the Specific Relief Act, 1963 allows a summary suit for possession by a person dispossessed otherwise than in due course of law, within six months, without any enquiry into title. For movable property, Sections 7 and 8 of the same Act, and in tort the action of detinue.

B. Extra-judicial remedies (self-help).

5. Abatement of nuisance. The person injured may remove or end the nuisance himself, for example by cutting overhanging branches or removing an obstruction. The right is hedged with conditions: notice must ordinarily be given to the wrongdoer before entering his land, except in an emergency; no more damage may be done than is necessary; and where two methods are available the less mischievous must be chosen. The law tolerates abatement but does not encourage it, because it invites breaches of the peace.

6. Distress damage feasant. Where a chattel or an animal strays onto a person's land and does damage there, he may seize and detain it until compensation is paid. It is a right of detention as security only: he may not use, work or sell the thing, and he must feed and care for an animal so detained.

The foundation is Donoghue v Stevenson [1932] AC 562 and Lord Atkin's neighbour principle: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour", a neighbour being anyone "so closely and directly affected by my act that I ought reasonably to have them in contemplation".

The modern formulation is the three-stage test in Caparo Industries plc v Dickman (1990): foreseeability of damage, a relationship of proximity, and whether it is fair, just and reasonable to impose a duty.

2. Breach of that duty.

Judged by the standard of the reasonable man, objectively. The factors which fix the standard in a given case are the magnitude of the risk, the seriousness of the injury which may result, the importance or utility of the defendant's object, and the cost and practicability of precautions. Bolton v Stone (1951): a cricket ball hit out of a ground about six times in thirty years injured a passer-by; the risk was so small that a reasonable man would not have guarded against it, and there was no breach. Paris v Stepney Borough Council (1951): an employer who knew a workman had only one good eye was negligent in not providing goggles, because for that man the seriousness of the injury was far greater.

B. Professional negligence.

The standard. A professional does not guarantee a result. He undertakes to bring to his task a reasonable degree of skill and knowledge, and to exercise a reasonable degree of care. The governing test is Bolam v Friern Hospital Management Committee (1957): a professional is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of men skilled in that particular art, even though other practitioners would have acted differently.

In India the Bolam test was adopted and explained in Jacob Mathew v State of Punjab (2005) 6 SCC 1, which laid down that:

• a professional may be held liable on one of two findings: either he did not possess the requisite skill which he professed to have, or he did not exercise, with reasonable competence, the skill which he did possess;
• the standard is that of an ordinary competent person exercising ordinary skill in that profession, and it is not necessary that he should possess the highest level of expertise;

Where liability is clear. The courts distinguish an error of judgment, on which they are protective, from a failure of a basic precaution, on which they are not. A swab or instrument left inside the patient is the standing example: Achutrao Haribhau Khodwa v State of Maharashtra (1996) 2 SCC 634, where a mop left after a sterilisation operation caused peritonitis and death, and the State was held vicariously liable, res ipsa loquitur being applied.

Practising a system one is not qualified in is negligence per se. Poonam Verma v Ashwin Patel (1996) 4 SCC 332: a practitioner registered in homoeopathy prescribed allopathic medicines and the patient died. The Supreme Court held that a person registered in one system has no licence to practise another, that doing so is a breach of a statutory prohibition, and that it amounts to negligence per se, so that the question whether he exercised reasonable skill does not arise.