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

The judicial remedies in tort, that is those obtained by an action in a court, are three:

1. Damages, the pecuniary compensation awarded for the injury, which in tort are always unliquidated, assessed on the principle of restitutio in integrum;
2. Injunction, an equitable and discretionary order directing the defendant to do, or more usually to refrain from doing, an act, granted where damages would be inadequate; and
3. Specific restitution of property, the recovery of the property itself where the plaintiff has been wrongfully dispossessed of movable or immovable property.

Misfeasance is the improper or negligent performance of an act which is in itself lawful. The defendant was entitled to do the thing; the wrong lies in the manner in which he did it. A contractor entitled to dig up a road who leaves the trench unlit and unguarded commits misfeasance.

It belongs to a set of three. Malfeasance is the doing of an act unlawful in itself, which the defendant had no right to do at all. Non-feasance is the omission to perform an act which the defendant was under a duty to perform.

The classical division is by whether damage must be proved:

1. Torts actionable per se, that is actionable without proof of any damage, because the law presumes damage from the infringement of the right. Trespass to land, trespass to the person (assault, battery and false imprisonment) and libel are the standing examples, and Ashby v White (1703) is the case.
2. Torts actionable only on proof of damage, where the plaintiff must show he has actually suffered loss. Negligence, nuisance, deceit, malicious prosecution and slander in English law fall here.

A second and equally acceptable division is by the defendant's state of mind: intentional torts, such as assault, battery, false imprisonment, trespass, deceit and defamation, and unintentional torts, principally negligence, to which is added a third class of strict and absolute liability, where the state of mind is irrelevant altogether.

Accord and satisfaction is a mode by which tortious liability is discharged.

Accord is the agreement by which the person injured by a tort agrees to accept some consideration in place of his right of action. Satisfaction is the actual payment or performance of that consideration.

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

Dispossession is the wrongful deprivation of a person's possession of land or of goods, that is the ouster of the person in possession by another who takes possession in his place. It is the most serious form of trespass, because the trespasser does not merely enter but stays and excludes the possessor.

Trespass to land takes three forms: entry on the land, remaining on it after the right of entry has ended, and dispossession, that is turning the possessor out.

1. Section 306 of the Indian Succession Act, 1925. All demands, and all rights to prosecute or defend any action or special proceeding, existing in favour of or against a person at the time of his death, survive to and against his executors or administrators, except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party. So the maxim now survives only in that residue.
2. The Legal Representatives Suits Act, 1855. An action lies against the executors of a deceased wrongdoer in respect of a wrong done by him to the property of another, if brought within one year of the death.
3. The Fatal Accidents Act, 1855. Where death is caused by a wrongful act, neglect or default such as would, if death had not ensued, have entitled the injured party to sue, an action lies for the benefit of the wife, husband, parent and child of the deceased. This is a new and independent cause of action vested in the dependants for their own loss, and it is quite distinct from anything surviving to the estate.

Damages are the pecuniary compensation which the law awards to a person for the injury he has sustained by the wrong of another. In tort they are unliquidated, that is assessed by the court and not fixed in advance by the parties, and the governing principle is restitutio in integrum: the plaintiff is to be placed, so far as money can do it, in the position he would have occupied had the tort not been committed.

The kinds:

1. Nominal damages: a small sum where a legal right has been infringed but no loss suffered. They vindicate the right, and are the natural award in torts actionable per se. Ashby v White (1703).
2. 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.
3. 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).

• Remoteness, tested since The Wagon Mound (1961) by whether damage of that kind was reasonably foreseeable, displacing the directness test of Re Polemis (1921);
• the eggshell skull rule: once a foreseeable kind of harm is established, the defendant takes his victim as he finds him, Smith v Leech Brain and Co (1962); and
• mitigation: the plaintiff must take reasonable steps to reduce his loss.

4. Knowledge of the plaintiff is not essential. Herring v Boyle (1834) held otherwise, on facts involving a schoolboy detained for non-payment of fees who was unaware of it, but it has been displaced. Meering v Grahame-White Aviation Co (1919): Atkin LJ held that a person can be imprisoned while he is asleep, while drunk, while unconscious and while insane, and that knowledge is not necessary. Murray v Ministry of Defence (1988) confirmed this in the House of Lords, adding that a plaintiff unaware of the restraint who suffered no harm will recover only nominal damages.
5. The means may be physical or by assertion of authority. A locked door will do; so will the assertion of authority by a person the plaintiff is bound to obey, provided the plaintiff submits to it. Mere moral pressure without submission is not enough.

Remedies:

• Damages, including aggravated and, in a proper case, exemplary damages;
• a writ of habeas corpus under Article 32 or Article 226 of the Constitution, which is the remedy while the detention continues;

Defences. Lawful arrest, with or without warrant, under Sections 41 to 60 of the Code of Criminal Procedure, 1973; valid process of a court, so that an arrest under a magistrate's order cannot be false imprisonment, the restraint being imposed by a judicial act; statutory authority; consent; and parental or quasi-parental authority to impose reasonable restraint.

Indian constitutional cases. Bhim Singh v State of Jammu and Kashmir (1985) 4 SCC 677, Rs. 50,000 to an MLA wrongfully detained; Nilabati Behera v State of Orissa (1993) 2 SCC 746, sovereign immunity is no defence to a claim for violation of Article 21; D K Basu v State of West Bengal (1997) 1 SCC 416, the requirements to be followed in every arrest.

6. making a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
7. giving a warranty or guarantee of performance not based on an adequate or proper test;
8. making a misleading representation about the price, including a false "bargain price";
9. giving false or misleading facts disparaging the goods or services of another;
10. manufacturing spurious goods or offering goods or services as spurious, or adopting deceptive practices in providing services;
11. permitting the offering of prizes or gifts with the intention of not providing them, or conducting a contest, lottery or game of chance to promote sale;
12. permitting the sale of goods not complying with prescribed safety standards;
13. hoarding or destroying goods, or refusing to sell them, so as to raise the cost;
14. failing to issue a bill, cash memo or receipt for the goods sold or services rendered;

1. Omkar authorised the wrongful act. The problem states that Omkar instructed the contractor to leave the heap of gravel on the road. An employer is always liable where he authorises or ratifies the wrongful act, because he is then not answering for another's tort at all: he is a joint tort-feasor and answers for his own. Obstructing a public highway with a heap of gravel is a public nuisance under Section 268 of the Indian Penal Code, and directing it to be done makes Omkar the author of it.

2. The work was on or adjoining a highway, and the duty is non-delegable. Where an employer engages a contractor to do work which is likely to cause danger to persons using a highway, the duty to see that care is taken is non-delegable: he cannot discharge it by delegating the work to a competent contractor.

Bower v Peate (1876): the employer of a contractor was held liable where the work involved the withdrawal of support from a neighbour's house, Cockburn CJ saying that a person who orders work to be done from which mischievous consequences will arise unless preventive measures are adopted cannot relieve himself of responsibility by employing someone else.

Practically, Pranav should sue both, since they are joint tort-feasors and their liability is joint and several, so he may recover the whole from whichever of them can satisfy the judgment.

b) What is general rule between independent contractor and his employer, regarding vicarious liability?

The general rule is that an employer is not vicariously liable for the torts of an independent contractor.

The distinction rests on control. A servant works under a contract of service and is subject to the employer's control as to the manner in which the work is done. An independent contractor works under a contract for services: he undertakes to produce a result, and how he achieves it is his own affair. Since the employer does not control the manner of the work, the law does not make him answerable for the way it is done.

The tests for distinguishing the two are the control test, the organisation or integration test formulated by Denning LJ in Stevenson, Jordan and Harrison Ltd v Macdonald and Evans (1952), and the modern multiple test which weighs all the indicia. In India, Dharangadhara Chemical Works v State of Saurashtra (AIR 1957 SC 264) holds that the prima facie test is the right of control over the manner of doing the work, but that all the features of the relationship must be considered.

a. Name the tortious activity, with it's essentials for which decorator is liable.

The tort is negligence.

These are the facts of Stansbie v Troman [1948] 2 KB 48. A decorator was left alone in a house, was told to lock the door if he went out, went out to buy wallpaper leaving the door unlocked for about two hours, and during his absence a thief entered and stole money and a diamond bracelet. The Court of Appeal held the decorator liable in negligence.

The three essentials, applied:

The point of law the case decides is on the third element: whether the deliberate criminal act of a third party breaks the chain of causation as a novus actus interveniens. The Court of Appeal held that it did not, because the very duty the decorator owed was a duty to guard against that precise risk. Tucker LJ put it that the duty arose because of the circumstances in which the decorator was left in the house, and that the loss was the natural and probable consequence of leaving the door unlocked.

That is the modern rule, confirmed in Home Office v Dorset Yacht Co (1970): a third party's deliberate act does not break the chain where the defendant's duty was precisely to prevent that kind of act.

The householder's alternative characterisation is breach of a bailee's duty. The decorator was, as regards the house and its contents entrusted to him, in the position of a person having custody, and under Sections 151 and 152 of the Indian Contract Act, 1872 a bailee must take as much care of the goods bailed as a man of ordinary prudence would take of his own goods of the same bulk, quality and value. On these facts he plainly did not.

b. What are general defences available to that tortious activity?

The general defences to an action in negligence are:

5. Act of a stranger, or novus actus interveniens. This is the defence the decorator would actually run, and on these facts it fails, for the reason given above: where the defendant's duty is precisely to guard against the act of the third party, that act does not break the chain of causation.
6. Necessity, statutory authority and plaintiff the wrongdoer (ex turpi causa), none of which arises here.
7. Limitation. A suit for compensation for negligence must be brought within the period prescribed by the Limitation Act, 1963.

The friends are consumers as users. The same clause includes any user of such goods other than the buyer, when such use is made with the approval of the buyer. Aditya bought the chikki and distributed it to his friends as a gift, which is approval of their use in the clearest possible form. The friends are therefore consumers although they paid nothing, and each of them may complain in his own right.

This is the statutory answer to the problem of privity of contract, which at common law required a decision of the House of Lords in Donoghue v Stevenson (1932) to overcome. The Act simply makes the approved user a consumer.

The complaint that lies. The goods suffer from a defect within Section 2(10), that is a fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law or under any contract. Note the date: the chikki was consumed on or about 1 January 2023, four days before the printed expiry date. It was therefore within its shelf life, and food which causes vomiting inside its own expiry date points to a manufacturing defect or to a failure of storage, not to consumption of a stale product. Had the friends eaten it after 5 January, the manufacturer would have had a complete answer, and the examiner has put the dates in deliberately.

1. the opposite party or each of them, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business, or has a branch office, or personally works for gain. The manufacturer's factory is in ABD District, so ABD qualifies;
2. any of the opposite parties, where there are more than one, so resides or carries on business, provided the Commission gives permission or the other opposite parties acquiesce;
3. the cause of action, wholly or in part, arises. The chikki was consumed and the vomiting occurred in CDT, VLM and AVT, so each of those districts qualifies for the friend who lives there; and
4. the complainant resides or personally works for gain. This is the clause added by the 2019 Act, and it is decisive here: each friend may file in his own district, and Aditya in CDT.

Pecuniary jurisdiction: Section 34(1). Complaints where the value of the goods or services paid as consideration does not exceed the prescribed amount, which after the notification of December 2021 is Rs. 50 lakh. Note that the 2019 Act computes the limit on the consideration paid, and not on the compensation claimed, which was the 1986 position. A packet of chikki is well within the District Commission's limit.

a. Whether Mangoo is liable for the injury of passer-by? Why?

Mangoo is prima facie liable, but the answer turns on who did the teasing.

The starting position: strict liability. A bear is an animal ferae naturae, that is of a naturally dangerous species. Under the scienter rule the keeper of such an animal keeps it at his peril: knowledge of its vicious propensity is conclusively presumed, and he is strictly liable for the damage it does. It is no answer that this particular bear had always been docile, that it was well trained, or that Mangoo took every care. May v Burdett (1846), where a monkey bit the plaintiff, is the authority.

• If a third party teased the bear and the passer-by was an innocent victim, Mangoo remains liable. The act of a stranger is a defence only where it was unforeseeable and could not have been guarded against, and the teasing of a bear tied up in the open near a public way, in a place where it is displayed daily to attract an audience, is exactly what a keeper should foresee. Mangoo created the opportunity by tethering a dangerous animal within reach of the public.
• If the teasing is not proved at all, the strict liability stands and Mangoo is liable.

The additional point that decides the case in India. Keeping a bear for street performance is itself unlawful. Sloth bears are listed in Schedule I of the Wild Life (Protection) Act, 1972, and hunting, capture and keeping in captivity without authorisation are offences under Sections 9, 39 and 51. Under Section 22 of the Prevention of Cruelty to Animals Act, 1960 the Central Government notified in 1991 that bears, monkeys, tigers, panthers and lions shall not be exhibited or trained as performing animals. Mangoo's whole activity is therefore prohibited, and a defendant carrying on an unlawful activity is in a very weak position to plead any defence at all.

Knowledge, where it must be proved, may be that of the keeper or of a servant to whom the animal is entrusted, and one previous bite or attempt is enough. That is the origin of the popular saying that every dog is allowed one bite.

Defences: plaintiff's own default, including provocation or teasing; act of God; act of a stranger; and volenti non fit injuria.

A. What it is.

The Central Consumer Protection Authority (CCPA) is a regulator established by the Central Government under Section 10 of the Consumer Protection Act, 2019, to regulate matters relating to violation of rights of consumers, 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.

It is the single biggest institutional change made by the 2019 Act. The 1986 Act had no regulator at all: it created advisory Councils and adjudicatory Commissions, and nothing happened unless an individual consumer came forward and complained.

B. Composition.

5. file complaints before the District, State or National Commission as the case may be;
6. intervene in any proceeding before a Commission in respect of allegations of violation of consumer rights or unfair trade practices;
7. review the safety and quality of goods and services and recommend the adoption of standards;
8. recommend to the Central Government the adoption of international covenants and best international practices;
9. undertake and promote research in the field of consumer rights;
10. spread and promote awareness of consumer rights;
11. encourage non-governmental organisations and other institutions working in the field of consumer rights;
12. advise the Ministries and Departments of the Central and State Governments on consumer welfare measures;
13. issue safety notices to alert consumers against dangerous or hazardous or unsafe goods or services; and
14. advise on the mandatory use of unique and universal goods identifiers.

D. Powers.

4. Powers against false or misleading advertisements (Section 21). Where the CCPA is satisfied that an advertisement is false or misleading and prejudicial to the interest of any consumer or is in contravention of consumer rights, it may:

• issue directions to the trader, manufacturer, endorser, advertiser or publisher to discontinue the advertisement or to modify it, within the time stated;
• impose a penalty up to Rs. 10 lakh on the manufacturer or endorser, and up to Rs. 50 lakh for every subsequent contravention;
• prohibit the endorser of a false or misleading advertisement from making any endorsement of any product or service for up to one year, extending to three years for every subsequent contravention; and
• proceed against the publisher who publishes such an advertisement.

Two safeguards are built in. An endorser is not liable if he has exercised due diligence to verify the veracity of the claims made in the advertisement. And no order may be passed under Section 21 without giving the person concerned an opportunity of being heard.

A. The problem.

Every wrongful act sets off a chain of consequences which, in theory, never ends. If a defendant were liable for all the consequences of his act, liability would be indeterminate. The law therefore draws a line and holds the defendant liable only for those consequences which are proximate, and not for those which are too remote. As Lord Wright said in Liesbosch Dredger v Edison, the law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection.

The question of remoteness arises only after liability is established. It is not about whether the defendant was at fault, but about how far his responsibility extends.

B. The two tests.

1. The test of directness: Re Polemis (1921).

In re Polemis and Furness, Withy and Co [1921] 3 KB 560 laid down that once the defendant is shown to be negligent, he is liable for all the direct consequences of his act, however unforeseeable.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No. 1) [1961] AC 388 (PC) overruled Re Polemis and established that a defendant is liable only for damage of a kind which was reasonably foreseeable.

Facts. The appellants' ship, the Wagon Mound, was taking on furnace oil in Sydney Harbour. Through the carelessness of their servants a large quantity of oil was spilled and drifted to the respondents' wharf about 200 yards away, where welding was in progress. The respondents stopped work, were advised that the oil could not be ignited on water, and resumed. Two days later molten metal fell on cotton waste floating on the oil, which acted as a wick, ignited the oil, and the wharf was destroyed.

Held. The appellants were not liable for the fire damage. Damage by fouling of the wharf was foreseeable; damage by fire was not. Viscount Simonds held that it is the foresight of the reasonable man which alone can determine responsibility, and that it does not accord with current ideas of justice or morality that a man should be liable for all the consequences of a negligent act however unforeseeable. Re Polemis was expressly disapproved.

3. The qualification: The Wagon Mound (No. 2) (1967).

Contrast Doughty v Turner Manufacturing Co [1964] 1 QB 518. An asbestos cement cover was knocked into a cauldron of molten liquid; a chemical reaction occurred and an eruption injured the plaintiff. Held not liable: injury by splashing was foreseeable, but injury by an unforeseeable chemical reaction was a different kind of damage.

D. The eggshell skull rule survives.

Once damage of a foreseeable kind is established, the defendant takes his victim as he finds him and is liable for the full extent of the harm, even where an unusual susceptibility made it far worse.

Smith v Leech Brain and Co [1962] 2 QB 405, decided after Wagon Mound: a galvaniser was burned on the lip by molten metal because of a negligent failure to protect him; the burn caused a pre-malignant condition to become cancerous and he died. The employers were liable for the death, because a burn was foreseeable and the extent of the consequences was governed by the old rule.

E. Intervening cause: novus actus interveniens.

The chain of causation may be broken by a new and independent act. The general rule is that a free, deliberate and informed act of a third party, or of the plaintiff himself, breaks the chain.

A. The concept.

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

Winfield's definition is fuller and carries a theory with it: "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." Section 2(m) of the Limitation Act, 1963 adopts the shorter formulation.

The three essentials of a tort are a wrongful act or omission, that is the violation of a duty fixed by law; legal damage, that is injuria, which the law presumes in torts actionable per se; and a legal remedy in the form of an action for unliquidated damages.

B. The maxims which build the concept.

1. Ubi jus ibi remedium: where there is a right, there is a remedy.

Real and even substantial damage unaccompanied by the violation of any legal right, which is not actionable at all. Gloucester Grammar School Case (1410): a rival school reduced the plaintiff's fees from 40 pence to 12 pence, and there was no remedy. Mogul Steamship Co v McGregor, Gow and Co (1892): lawful trade combination. Bradford Corporation v Pickles (1895): a landowner maliciously intercepted percolating water and was not liable, because an act lawful in itself does not become unlawful because the motive is bad.

The pair together is the whole concept in miniature: the law protects rights, not interests, and neither the size of the loss nor the badness of the motive decides whether an action lies.

4. Volenti non fit injuria: to a willing person no injury is done.

The general defence of consent. The plaintiff must have had knowledge of the risk and have consented to bear it; knowledge alone will not do, so scienti non fit injuria is not the law. Smith v Baker (1891); Hall v Brooklands Auto Racing Club (1933); Padmavati v Dugganaika (1975 ACJ 222). It fails against a rescuer (Haynes v Harwood, 1935) and against a breach of statutory duty.

5. Res ipsa loquitur: the thing speaks for itself.

8. Novus actus interveniens: a new act intervening.

A free, deliberate and informed act of a third party or of the plaintiff may break the chain of causation, unless the defendant's very duty was to guard against it: Stansbie v Troman (1948).

9. Nullus commodum capere potest de injuria sua propria: no man can take advantage of his own wrong.

The foundation of ex turpi causa non oritur actio, that no action arises from a base cause, and of the old rule against contribution between joint tort-feasors in Merryweather v Nixan (1799).

10. Salus populi suprema lex: the welfare of the people is the supreme law.

The foundation of the defence of necessity and of much of the law of public nuisance.

11. De minimis non curat lex: the law does not concern itself with trifles.

12. Sic utere tuo ut alienum non laedas: so use your own as not to injure another's.

The idea underlying nuisance and the rule in Rylands v Fletcher (1868).

C. What the maxims show about the concept.

A. What deceit is.

Deceit, also called fraud or fraudulent misrepresentation, is a false statement of fact made by the defendant knowingly, or without belief in its truth, or recklessly careless whether it be true or false, with the intention that the plaintiff should act on it, on which the plaintiff does act to his detriment.

It is an intentional tort protecting an economic interest, and unlike most torts it is concerned with words rather than with conduct. The action lies at common law, and in India it is reinforced by Section 17 of the Indian Contract Act, 1872, which defines "fraud", and Section 19, which makes a contract induced by fraud voidable at the option of the party defrauded, who may also sue for damages.

B. The essentials.

1. There must be a representation of fact.

• A statement of intention is not, as a rule, a statement of fact, but a false statement of present intention is. Edgington v Fitzmaurice (1885): directors invited subscription for debentures, stating that the money would be used to improve buildings and extend the business, when they in fact intended to pay off existing debts. Bowen LJ: "the state of a man's mind is as much a fact as the state of his digestion."
• A statement of law was traditionally excluded, though the distinction has been much eroded.

2. The representation must be false.

Its substantial falsity is what matters, and a statement literally true but materially misleading is treated as false.

3. The representation must be made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false.

This is the requirement of fraudulent intent, and it is the heart of the tort. It comes from Derry v Peek (1889) 14 App Cas 337.

4. The representation must be made with the intention that the plaintiff should act on it.

The defendant must have intended the plaintiff, or a class of which he is one, to act on the statement. Peek v Gurney (1873): a false prospectus was addressed to the original allottees of shares, and a person who bought in the open market afterwards could not sue on it, because the prospectus had spent its force once the shares were allotted.

5. The plaintiff must have acted on the representation.

He must show that he relied on it, and that it was an inducing cause, though it need not have been the only one. Edgington v Fitzmaurice: the plaintiff was partly influenced by his own mistaken belief that he was getting a charge on the property, and he still recovered, because the false statement was a material inducement.

A plaintiff who did not know of the representation, or who did not believe it, or who relied on his own independent inquiry, cannot sue. But it is no defence that the plaintiff could have discovered the truth by reasonable diligence: a fraudulent defendant is not permitted to complain that his victim was too trusting.

6. The plaintiff must have suffered damage.