BLS LLB 5 Years Sem 5 Torts 2025-26 - 60/40 Question Paper with Solutions

Two differences:

1. A tort is a private wrong; a crime is a public wrong. In tort the injured party himself sues in his own name, and he may compromise or waive the claim; in crime the State prosecutes, and most offences are not compoundable except as permitted by Section 320 of the Code of Criminal Procedure, 1973.
2. The consequence differs. The remedy in tort is compensation, that is unliquidated damages paid to the plaintiff; the consequence of a crime is punishment, imprisonment or a fine, the fine going to the State and not to the victim.

A third, if you have room, is the standard of proof: a tort must be proved on the balance of probabilities, a crime beyond reasonable doubt.

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 from any one, though he may have only one satisfaction in total.

Section 2(6) of the Consumer Protection Act, 2019 defines a "complaint" as any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act, that:

1. an unfair contract or unfair trade practice or restrictive trade practice has been adopted by any trader or service provider;
2. the goods bought or agreed to be bought suffer from one or more defects;
3. the services hired or availed of, or agreed to be hired or availed of, suffer from any deficiency;
4. a trader or service provider has charged a price in excess of that fixed by law, displayed on the goods or their packing or on a price list, or agreed between the parties;
5. goods or services hazardous to life and safety are being offered for sale in contravention of any law requiring the display of information or the taking of preventive action; or
6. a claim for product liability action lies against the product manufacturer, product seller or product service provider.

Nervous shock is a recognisable psychiatric illness caused by the defendant's wrongful act without any direct physical impact on the plaintiff. What must be proved is a medically recognised condition, such as post-traumatic stress disorder or clinical depression; mere grief, sorrow, fright or distress is not enough.

It may be caused intentionally, as in Wilkinson v Downton (1897), or negligently, where the ordinary requirements of duty, breach and damage apply.

Accord and satisfaction is one of the modes by which tortious liability is discharged. Accord is the agreement by which the person injured agrees to accept some consideration in place of his right of action; satisfaction is the actual payment or performance of that consideration.

Both are required: an accord without satisfaction is no discharge, because the promise to accept does not extinguish the claim until what was promised has been given.

Section 2(9) of the Consumer Protection Act, 2019 defines "consumer rights" as including six rights.

1. The right to be protected against the marketing of goods, products or services which are hazardous to life and property.

This is the right to safety, and it is the foundation of the rest. It is enforced by Section 20, under which the Central Consumer Protection Authority may recall goods and withdraw services which are dangerous, hazardous or unsafe and order reimbursement of the price; by Section 39, under which a Commission may order the withdrawal of hazardous goods from sale and the discontinuance of their manufacture; by Section 2(47)(v), making it an unfair trade practice to permit the sale of goods not complying with prescribed safety standards; and by Chapter VI on product liability.

2. The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, so as to protect the consumer against unfair trade practices.

5. The right to seek redressal against unfair or restrictive trade practices or unscrupulous exploitation of consumers.

This is the substance of the Act: the three-tier Commissions (Sections 28, 42 and 53), the reliefs in Section 39, mediation under Chapter V, and product liability under Chapter VI.

6. The right to consumer awareness.

The Councils and the CCPA are charged with spreading and promoting awareness of consumer rights: Section 18(2)(i).

Origin. The six derive from the United Nations Guidelines for Consumer Protection, adopted in 1985, which build on the four rights stated by President Kennedy to the United States Congress in 1962: the rights to safety, to be informed, to choose and to be heard.

Bradford Corporation v Pickles (1895) AC 587: the defendant sank a shaft on his own land, intercepting percolating underground water feeding the Corporation's works, maliciously, to force them to buy his land at his price. Not liable: an act lawful in itself does not become unlawful because the motive behind it is bad.

Chasemore v Richards (1859) and Acton v Blundell (1843): there is no right to percolating underground water.

Ushaben v Bhagyalaxmi Chitra Mandir (AIR 1978 Guj 13): hurt to religious feelings by the screening of a film is not an actionable wrong.

Town Area Committee v Prabhu Dayal (AIR 1975 All 132): the demolition of a building constructed without sanction founded no action.

The converse maxim: injuria sine damno, the infringement of a legal right without actual loss, which is actionable because the law presumes damage. Ashby v White (1703), the wrongful refusal of a qualified elector's vote; Bhim Singh v State of Jammu and Kashmir (1985) 4 SCC 677, Rs. 50,000 to an MLA wrongfully detained.

Two more authorities on the same maxim.

Trespass ab initio is a doctrine by which a person who enters land under an authority given by law, and then abuses that authority, is treated as a trespasser from the very beginning, so that his original entry, lawful when made, becomes retrospectively unlawful.

The leading case: The Six Carpenters' Case (1610) 8 Co Rep 146a.

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

Held. The carpenters were not liable, and 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. Where the authority or licence is given by the party himself, an abuse does not make him a trespasser ab initio; the party's remedy is an action for the particular wrong done.

Illustrations. A police officer entering under a warrant who then ransacks the house; a customs officer entering to inspect who steals goods; a distrainor entering to distrain who works or uses the goods; a guest at a common inn who commits a positive wrong there.

The modern limit: Elias v Pasmore (1934) 2 KB 164. Police entered lawfully to arrest a man and seized documents, some lawfully and some unlawfully; they were trespassers only as to the unlawful seizure, and not ab initio in respect of the entry. The doctrine is now applied narrowly.

Distinguish revocation of a licence. Trespass ab initio is retrospective: the original entry becomes wrongful. Revocation is prospective: a person whose licence is withdrawn becomes a trespasser only if he remains after a reasonable time to leave. And trespass by remaining is one of the three forms of trespass to land, the others being entry and dispossession.

"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."

Lord Cairns LC, in the House of Lords, affirmed the rule and added that it applies where the defendant has made a non-natural use of his land, that is a special use bringing increased danger, and not the ordinary use of land or such use as is proper for the general benefit of the community.

The three essentials.

1. A dangerous thing likely to do mischief if it escapes. Water, gas, electricity, explosives, fire, poisonous fumes, vibrations, sewage, and even a flagpole and a chair-o-plane have qualified.

The Indian development. M C Mehta v Union of India (1987) 1 SCC 395, the oleum gas leak case, laid down absolute liability: an enterprise in a hazardous or inherently dangerous activity is liable with no exception whatever, no escape need be shown so that workmen inside are covered, and compensation is correlated to the magnitude and capacity of the enterprise.

a. Whether Mr. Rajesh can file case against Dr. Sharma and the charitable trust? Explain.

Yes. He may sue both, in tort, for negligence.

Against Dr. Sharma personally. A doctor owes his patient a duty of care from the moment he undertakes treatment, and that duty does not depend on payment. Laxman Balkrishna Joshi v Trimbak Bapu Godbole (AIR 1969 SC 128): a person who holds himself out as ready to give medical advice and treatment owes the patient a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment.

2. For its own negligence, in organising a surgical camp without adequate facilities, sterilisation, equipment, screening of patients or post-operative care, and in selecting the practitioners. The duty to organise a safe camp is the Trust's own and is non-delegable.

Mass cataract camps have produced repeated litigation in India where poor sterilisation or overloading led to loss of sight, and the organisers have been held liable both in tort and, where the camp was not free to all, before the consumer forum.

b. Whether Consumer case can be possible if no fee charged from Mr. Rajesh? Explain.

It depends on whether the Trust renders services free to everybody, or charges some and treats others free.

The governing authority is Indian Medical Association v V P Shantha (1995) 6 SCC 651, in which a three judge Bench laid down:

1. Medical treatment is a "service" within the definition, now Section 2(42) of the 2019 Act;
2. it is not a "contract of personal service", which is the phrase excluded, because that phrase imports a master and servant relationship and a doctor is engaged under a contract for services;

But the absence of a consumer remedy is not the absence of a remedy. The tort action for negligence survives in every case, because a doctor's duty of care has never depended on payment. Section 100 of the 2019 Act, the successor to Section 3 of the 1986 Act, provides that the Act is in addition to and not in derogation of any other law, so the patient always has the civil court, and in a case of catastrophic injury with a large claim he may prefer it.

If he is a consumer, the reliefs under Section 39 are compensation for the loss and injury, including mental agony, refund of any charges, and in a proper case punitive damages. V Kishan Rao v Nikhil Super Speciality Hospital (2010) 5 SCC 513 holds that expert evidence is not required in every case, particularly where res ipsa loquitur applies.

The MCC, as occupier and organiser, owes a duty of care to paying spectators, who are invitees for reward. But a duty of care is not a guarantee of safety. Whether it has been breached is decided by weighing four factors:

• the magnitude of the risk, that is how likely the harm was;
• the seriousness of the injury which may result;
• the importance or utility of the defendant's activity; and
• the cost and practicability of precautions.

Bolton v Stone [1951] AC 850 is the leading case and is the one the examiner has in mind. A cricket ball was hit out of a ground and struck a woman standing on a road outside. The ball had cleared the fence about six times in thirty years. The House of Lords held there was no negligence: the risk was so small that a reasonable man would not have thought it necessary to guard against it. Compare Miller v Jackson (1977), where balls were hit into the plaintiff's garden eight or nine times a season and the risk was held substantial.

2. A spectator accepts the risks inherent in the game.

• The fielder's misjudged catch is precisely the "error of judgment in the heat of the game" which Wooldridge v Sumner holds is not negligence.
• The MCC is therefore not liable merely because the injury occurred, however severe it was.

Where Arjun would succeed. He must show a breach by the organiser, not by the fielder. He would succeed if he proved that:

• the seating he was sold was in a position of known and unusual danger, and no netting, screen or warning was provided although it was practicable to do so;
• the ground's safety arrangements fell below the standards prescribed by the regulator, since a breach of a prescribed standard is strong evidence of negligence;
• there was no medical or emergency provision at the ground, so that the injury was aggravated; or
• the stand was overcrowded or in disrepair, which would be a breach of the occupier's duty independently of the game.

The problem gives no such fact, which is why the answer as framed must be that the claim fails.

b. State the defences available to MCC.

5. Contributory negligence, a partial defence reducing the damages, if Arjun was, for example, not watching the play, had moved to a seat he was not allotted, or had ignored a displayed warning.
6. Exclusion or notice on the ticket. Tickets to sporting events commonly carry a term that the holder attends at his own risk. Its effect is limited: such a term must be brought to the spectator's notice to bind him, and it cannot exclude liability for death or personal injury caused by the organiser's own negligence in the face of the Consumer Protection Act, since Section 2(46) now allows a Commission to strike down an unfair contract term.

One further route open to Arjun. Since he paid for a ticket, he is a consumer of the service of providing a sporting entertainment: "entertainment" and "amusement" are expressly within "service" in Section 2(42) of the Consumer Protection Act, 2019. A complaint for deficiency in service would lie if the safety arrangements were inadequate, and Section 2(11) now expressly includes any act of negligence or omission. That is often the faster route, and the burden on him is the same: he must still show that the arrangements fell short of the standard.

Here scienter is established twice over on the face of the problem. The dog was "known to exhibit aggressive tendencies", and there had been "prior complaints from neighbours". Actual knowledge is admitted, and the complaints put it beyond argument.

Once scienter is proved, liability is strict. It is no defence that Khan took care, that the dog had never bitten this passer-by before, or that he did not expect it to escape on that morning. The keeper of an animal known to be vicious keeps it at his peril. May v Burdett (1846), where a monkey bit the plaintiff, states the principle for the ferae naturae limb, and the same strictness applies to a mansuetae naturae animal once knowledge is shown.

Note the practical rule: one previous bite or attempt is enough to fix the keeper with knowledge, and knowledge may be that of the keeper or of a servant in charge of the animal. That is the origin of the popular saying that every dog is allowed one bite. Khan's dog has plainly had its one bite.

2. Negligence, independently.

Nilofer's remedies are damages for medical expenses, pain and suffering, scarring or disfigurement, the course of anti-rabies treatment, and any loss of earnings; and an injunction requiring Khan to restrain the animal.

b. Explain the defences available to Mr. Khan.

The recognised defences to the scienter action are four, and on the facts as stated none of them assists him.

1. Plaintiff's own default, including provocation. This is the strongest defence in animal cases and would be a complete answer if Nilofer had teased, struck or provoked the dog, or had entered Khan's compound as a trespasser. The problem says she was a passer-by, that is lawfully on the road, and says nothing about provocation, so the defence does not arise. Note that where the injured person is a young child, provocation is judged by the standard of a child of that age and the defence is much weaker.

• Contributory negligence, a partial defence which would reduce the damages if Nilofer had done something careless, for example approaching or attempting to touch a dog she could see was aggressive. Nothing in the facts supports it.

1. Sunrise Academy had no right that students should continue to come to it. Every person is entitled to carry on a lawful trade or occupation at a place of his own choosing, and to attract custom by better teaching, better facilities or lower fees. The loss which lawful competition inflicts on a rival is loss for which the law provides no remedy.
2. KK School has used no unlawful means. It has not defamed Sunrise Academy, not published injurious falsehood about its results, not passed off its institution as connected with the older one, not induced a breach of contract by enticing away teachers under subsisting contracts, and not entered into an unlawful conspiracy. It has simply opened and taught.
3. The right to occupation is constitutionally protected. Establishing and administering an educational institution is an occupation within Article 19(1)(g) of the Constitution, and, for a minority, a right under Article 30(1). A court will not restrain the exercise of that right at the suit of a competitor.

The answer would change only if unlawful means were used, and those are worth naming, because the examiner is testing where the line falls:

The leading authority is the Gloucester Grammar School Case (1410) YB 11 Hen IV of 47, whose facts are this problem exactly. The defendant, a schoolmaster, set up a rival school in the same town. Because of the competition the plaintiff's fees fell from 40 pence to 12 pence. The action failed: damage without injury is no cause of action, and the defendant had done nothing unlawful in setting up his school.

Mogul Steamship Co v McGregor, Gow and Co (1892) AC 25 applied the principle at commercial scale: a combination of shipowners drove the plaintiff out of the China tea trade by rebates and cut freight rates, and the House of Lords held there was no actionable wrong, the means being lawful and the object the advancement of their own trade.

Ushaben v Bhagyalaxmi Chitra Mandir (AIR 1978 Guj 13) is the Indian illustration of the same maxim in a different setting.

The converse maxim is injuria sine damno, the infringement of a legal right without actual loss, which is actionable because the law presumes damage: Ashby v White (1703), where a returning officer wrongfully refused a qualified elector's vote and was held liable although the candidate he supported was elected anyway.

Even where the plaintiff proves every ingredient of a tort, the defendant may escape liability by establishing a general defence, that is one available across the law of torts rather than peculiar to a single tort.

1. Volenti non fit injuria (consent). No injury is done to one who is willing. 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.

Two elements: knowledge and consent. Mere knowledge is not enough, and scienti non fit injuria is not the law. Smith v Baker (1891): a workman who knew stones were being swung over his head and worked on had not consented, a man under economic compulsion not being a volunteer. Hall v Brooklands Auto Racing Club (1933): a spectator at a motor race had accepted the risks inherent in the spectacle. Padmavati v Dugganaika (1975 ACJ 222) in India.

4. Act of God (vis major). An operation of natural forces without human intervention, so extraordinary that no human foresight could reasonably anticipate it. Nichols v Marsland (1876) succeeded; Greenock Corporation v Caledonian Railway (1917) failed, the rainfall being heavy but not unprecedented; Ramalinga Nadar v Narayana Reddiar (AIR 1971 Ker 197): the act of an unruly mob is the act of man. Unlike inevitable accident, act of God is an exception to Rylands v Fletcher.

5. Private defence. Reasonable and proportionate force may be used to protect one's own person or property, or that of another. Setting a spring gun without notice is not private defence.

6. Mistake. As a general rule mistake, of fact or of law, is no defence: a person who enters land honestly believing it his own is still a trespasser. The exceptions are torts in which the state of mind is an ingredient, notably malicious prosecution and deceit, and the defence of qualified privilege in defamation.

7. Necessity. An act causing damage but 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). The maxim is salus populi suprema lex.

Definition. False imprisonment is the total restraint of a person's liberty, for however short a time, without lawful justification. It is one of the three forms of trespass to the person, with assault and battery, and it is actionable per se.

The word "false" here means wrongful, and "imprisonment" does not require a prison: any complete restraint of movement suffices.

The essentials.

1. There must be a total restraint of liberty.

The confinement must be complete, so that the person is confined within limits fixed by the wrongdoer, with no reasonable means of escape. A merely partial obstruction, which leaves a reasonable alternative route open, is not false imprisonment.

4. Knowledge of the plaintiff is not essential.

Herring v Boyle (1834) held the contrary, on facts involving a schoolboy detained by his master for non-payment of fees, the refusal being communicated to the mother only; the child was unaware, and the court held there was no imprisonment. That case has been displaced.

Meering v Grahame-White Aviation Co (1919) 122 LT 44: 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 it was 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) 1 WLR 692 settled the point in the House of Lords in favour of Meering, Lord Griffiths adding that a person unlawfully imprisoned without knowing it should still have a remedy, though he will recover only nominal damages if he suffered no harm.

5. The means may be physical or by assertion of authority.

1. Damages, and because the tort is actionable per se the plaintiff recovers for the loss of liberty itself, together with injury to feelings, humiliation and mental distress. Aggravated damages are common where the manner of the detention was high-handed, and exemplary damages where it was oppressive, arbitrary or unconstitutional action by servants of the government, which is the first of the Rookes v Barnard (1964) categories.
2. A writ of habeas corpus under Article 32 or Article 226 of the Constitution, which is the remedy while the detention continues.
3. Self-help, that is escape, using reasonable force.
4. The criminal counterparts: wrongful restraint under Section 339 and wrongful confinement under Section 340 of the Indian Penal Code, punishable under Sections 341 to 348.

The remedies for a tort are of two kinds: judicial remedies, obtained by an action in a court of law, and extra-judicial remedies, which the injured party may take by his own act, without the intervention of a court. The latter are also called remedies by self-help.

A. Judicial remedies.

1. Damages.

The principal remedy. In tort damages are unliquidated, assessed by the court on the principle of restitutio in integrum: the plaintiff is to be placed, so far as money can, in the position he would have occupied had the tort not been committed.

The kinds:

• Nominal damages: a small sum where a legal right is infringed but no loss suffered. They vindicate the right, and are the natural award in torts actionable per se. Ashby v White (1703).
• Contemptuous damages: the smallest coin in the realm, where the plaintiff has a technical right but the court disapproves of his having sued; he is usually refused his costs as well.

• Prospective damages, for future loss, awarded once and for all because the law does not permit a cause of action to be split.
• General damages, presumed by law and needing no proof of amount; and special damages, specifically pleaded and strictly proved.

The controls on the award: causation, tested by the but for rule; remoteness, by reasonable foreseeability of the kind of damage since The Wagon Mound (1961); the eggshell skull rule, Smith v Leech Brain and Co (1962); and mitigation, the plaintiff being bound to take reasonable steps to reduce his loss.

2. Injunction.

An order of a court directing a person to do, or more usually to refrain from doing, a particular act. It is an equitable and discretionary remedy, granted where damages would be an inadequate remedy, and it is the remedy that actually matters in nuisance, trespass and the protection of easements, because the plaintiff wants the interference stopped rather than priced.

• Immovable property: Section 6 of the Specific Relief Act, 1963 gives a summary suit to a person dispossessed otherwise than in due course of law, to be filed within six months, in which possession is restored without any enquiry into title, and from which no appeal or review lies. Section 5 gives an ordinary suit for possession based on title.
• Movable property: Sections 7 and 8 of the same Act, and in tort the action of detinue.

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

1. Self-defence. A person may use reasonable force to defend his own person, that of another, and his property. The force must be proportionate to the threat, and used for defence and not retaliation.
2. Expulsion of a trespasser. An occupier may remove a trespasser using reasonable force, but only after a request to leave and a reasonable opportunity to comply, unless the entry was forcible.
3. Re-entry on land. A person wrongfully dispossessed may re-enter peaceably, but may not use force amounting to a breach of the peace; if he cannot enter peaceably, his remedy is Section 6 of the Specific Relief Act.

The Consumer Protection Act, 2019 retains and restructures the three-tier quasi-judicial machinery first created by the 1986 Act: the District Commission, the State Commission and the National Commission, with a further appeal to the Supreme Court.

1. District Consumer Disputes Redressal Commission (Sections 28 to 41).

Establishment, Section 28. The State Government shall, by notification, establish a District Commission in each district, and may establish more than one in a district where it deems fit.

Composition, Section 29. A President and not less than two members as may be prescribed by the Central Government, whose qualifications, method of recruitment, procedure of appointment, term of office, resignation and removal are prescribed under Section 30. Under the 1986 Act the President had to be qualified to be a District Judge, with two members, one of whom shall be a woman.

2. State Consumer Disputes Redressal Commission (Sections 42 to 52).

Establishment, Section 42. By the State Government, by notification.

Composition. A President and not less than four or such higher number of members as may be prescribed, in consultation with the Central Government. Under the 1986 Act the President had to be a Judge or former Judge of a High Court, appointed in consultation with the Chief Justice of the High Court.

Jurisdiction, Section 47. Original, above Rs. 50 lakh and up to Rs. 2 crore; unfair contracts, up to Rs. 10 crore; appellate, over the District Commissions in the State; and revisional, where a District Commission has exercised a jurisdiction not vested in it, failed to exercise one so vested, or acted illegally or with material irregularity. Section 48 gives power to transfer a case within the State; Section 49(2) to declare an unfair contract term void; Section 50 to review.

Appeal, Section 51. To the National Commission within thirty days from an order in original jurisdiction, on deposit of fifty per cent. The proviso limits an appeal from an order made in appellate jurisdiction to a question of law.

• Reliefs, Section 39: removal of the defect, replacement, return of the price, compensation including punitive damages, removal of the deficiency, discontinuance of an unfair or restrictive trade practice, cessation of a misleading advertisement, withdrawal of hazardous goods, a corrective advertisement, payment to the Consumer Welfare Fund where the loss is suffered by a large number of consumers not readily identifiable, and costs.
• Mediation, Section 37 and Chapter V: the Commission may, at the first hearing or later, refer the matter to mediation with the parties' written consent where it appears that there exist elements of a settlement acceptable to both; a settlement so recorded is not appealable.
• Limitation, Section 69: two years from the date the cause of action arose, extendable for sufficient cause with reasons recorded.