Additional week 2.pptx

LIABILITY BASED ON FAULT
AND STRICT LIABILITY
Mohd Imran

General Conditions of Liability for a Tort
• A liability based on 'fault' implies that the defendant is liable because of harms caused with an
intention or negligence on his part.
• A 'strict' liability makes the defendant liable for accidental harms caused without any intention and
negligence on his part (`no fault' liability.)
• In general, a tort consist in some act done by the defendant whereby he has without just cause or
excuse caused some form of harm to the plaintiff.
• The fundamental principle of this branch of the law is alterum non leadere- to hurt nobody by word
or deed.
• An action of tort is usually a claim for pecuniary compensation in respect of damage suffered as the
result of the invasion of a legally protected interest.
• However, the law of tort fails to provide adequately for the injury other the physical, done maliciously
or carelessly

• In order to constitute a tort, the following conditions are to be satisfied:
(1) There must be a wrongful act or omission on the part of the defendant
(2) Such act or omission should result in legal damage (injuria) to the plaintiff
(3) Some legal remedy in the form of an action for damages must be available.
( I ) Act or Omission
• In order to make a person liable for a tort he must have done some legal wrong i.e., violates the
legal rights of another person (committing the act of trespass or defaming a person.
• The wrongful act, if merely a moral or social wrong, will not amount to a tort e.g., failing to help a
starving man or saving a drowning child.
• The wrongful act also includes omission to perform a legal duty.

• (2) Legal Damage
• The test to determine the liability under the law of torts is to see whether any legal right of the
plaintiff has been violated or not.
• If a legal right is violated, then it does not matter that the plaintiff has suffered any loss or not.
• The term 'injuria' refers to infringement of a legal right and the term 'damnum' means substantial
harm, loss or damage. The term 'sine' means without.
• Injuria sine damnum
• This maxim means violation of a legal right without causing any harm, loss or damage
• to the plaintiff.
• It is the behaviour, which is actionable as a tort. It is always actionable as legal wrongs entail a
remedy. Every injury imports damage. Generally, the court awards nominal damages.

• Torts are of two kinds — namely, those, which are actionable per se, and those, which are
actionable only on proof of actual damage resulting from them.
• Thus, the act of trespassing is actionable even though the plaintiff has not suffered any harm.
• Similarly, a libel is actionable per se, while slander (i.e., oral as opposed to written defamation) is
not actionable without proof of actual damage.
• In Ashby v While (1703) 2 LR 938, the plaintiff was a qualified voter at a parliamentary election,
but the defendant, a returning officer, wrongfully refused to take plaintiff's vote. No loss was suffered
by such refusal because the candidate for whom he wanted to vote won inspite of that. The
defendant was held liable.
• In Bhim Singh v State of J & K (AIR 1986 SC 494), the petitioner, an M.L.A. of J & K Assembly,
was wrongfully detained by the police. Thus, he was deprived of his fundamental right to personal
liberty and constitutional right to attend the Assembly session. The court awarded exemplary
damages of Rs. 50,000 by way of consequential relief.

• Damn um sine injuria
• It means that the plaintiff may suffer actual or substantial loss without any violation or infringement
of legal right and therefore no action lies in such cases.
• This is generally so when the exercise of legal right by one results in consequential harm to the
other, even though the injury is intentional. It is never actionable.
• There are many forms of harm of which the law takes no account:
(i) Loss inflicted on individual traders by competition in trade.
(ii) Where the damage is done by a man acting under necessity to prevent a greater evil.
(iii) Damage caused by defamatory statements made on a privileged occasion.
(iv) Where the harm is too trivial, too indefinite or too difficult of proof.
(v) Where the harm done may be of such a nature that a criminal prosecution is more appropriate
e.g., in case of public nuisance or causing of death.
(vi) There is no right of action for damages for contempt of court.

• In Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen, the defendant, a schoolmaster, set up
a rival school to that of the plaintiffs. Because of the competition the plaintiffs had to reduce their
fees. Held that the plaintiffs had no remedy for the loss thus suffered by them.
• Similarly, in Mogul Steamship Co. v McGregor Gow & Co. (1892) A.C. 25, a number of Steamship
companies combined and drove the plaintiff's company out of trade by offering reduced freight. Held
that the plaintiff had no cause of action as the defendants had only used lawful means to protect
and extend their trade and increase their profits.
• The case of Chesmore v Richards (1859) 7 HCL 349, shows that if a man has the misfortune to lose
his spring by his neighbour digging a well, he must dig his own well deeper.

• Similarly, in Acton v Blundell (1848) 12 M & W 324, the defendants by digging a coal pit intercepted
the water which affected the plaintiff's well less than 20 years old, at about one mile. Held, they
were not liable.
• In Dickson v Reuter k Telegram Co. (1877) 3 C.P.D. I, the defendants were held not liable even
though their negligence had caused damage to the plaintiff.
• A sent a telegram to B for the shipment of certain goods. The telegram co. by a mistake delivered
the telegram to C. C acting on the telegram sent the goods to A who refused to accept the goods
stating that he had ordered the goods not from C but from B. Held that C had no cause of action
against the company for the company did not owe any duty of care to C and no legal right of C
could, therefore, be said to have been infringed.

General Defences: Avoidance of Liability in Tort
• In an action for a tort, the defendant may avoid his liability by taking the plea of some defence.
There are some general defences, which may be taken against action for a number of wrongs.
(I) Volenti non fit injuria (Leave and Licence)
• Everyone is the best judge of his interest and therefore the one who voluntarily agrees to suffer
harm is not allowed to complain about that and one's consent is a good defence against oneself.
• This is so because the harm voluntarily suffered does not constitute the legal injury. No man can
enforce a right, which he has voluntarily waived or abandoned.
• Consent to suffer the harm may be express or implied.
• An example of express consent is submitting to a surgical operation. An example of implied consent
is where a player or a spectator in the game of cricket or football is deemed to be agreeing to any
hurt, which may be likely in the normal course of the game.

• In Hall v Brooiclands Auto Racing Club (1931) 1 K.B. 205, the plaintiff was a spectator at a motorcar
race. During the race, there was a collision between two cars, one of which was thrown among the
spectator, thereby injuring the plaintiff. Held that the duty towards spectator Was the duty of care
rather than the duty of skill.
• Thus, error of judgment or lapse of skill on the defendant's part will not make him liable in a horse
show [Woolridge v Summer (1963) 2 QB 43].
• In Padmavatl v Dugganaika (1975) 1 Karnt. L.J. 93, while the driver was taking the jeep for filling
petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front
wheel to the axle gave way toppling the jeep. The two strangers were thrown out and one of them
died. Held that neither the driver nor the master could be made liable, firstly, because it was a case
of sheer accident and, secondly, the strangers had voluntarily got into the jeep.

• Essential Conditions of a Defence of Consent
(i) Free consent- The consent must not have been induced by fraud, compulsion, coercion, undue
influence, misrepresentation, mistake. etc.
Moreover, the act done by the defendant must be the same for which the consent is given.
When a person is incapable of driving his consent because of his insanity or minority, consent of
such person's parents or guardian is sufficient.
(ii) Knowledge- Knowledge of a danger or risk is not the same thing as the consent to bear the
danger.
In order to avail knowledge as a defence, it is necessary first to prove that the plaintiff was aware
of the risk and second that he, knowing the same, agreed to suffer the harm.
Thus, mere knowledge of the risk (Scienti non fit injuria) is not enough. It is not correct to say that
no injury is done to one who knowingly does an act.

• In Cutler v United Dairies (London) Ltd. (1953) 2 K.B. 297, the driver of a cab with restive horses
cried for help. The plaintiff went and attempted to hold the horse, but it threw him on the ground
causing him injuries, in respect of which he sued the defendant. Held that the plaintiff has no right of
action, as he must have known that his attempt to hold the horse was attendant with risk, and
therefore, the maxim volenti non fit injuria applied.
• In Bowater v Rowley Regis Corpn. (1944) K.B. 476, the plaintiff, a cart driver was asked by the
defendant's foreman to drive a horse, which to the knowledge of both’, was liable to bolt. The
plaintiff protested, but ultimately took out the horse in obedience to the order. The horse bolted and
the plaintiff was injured thereby. Held, the maxim volenti non fit injuria did not apply and the plaintiff
was entitled to recover.
• In Baker v T.E. Hopkins & Son (1959) 3 All E.R. 255, due to the employer’s negligence a well was
filled with poisonous fumes of a petrol driven pump and two of his workmen who were
reconstructing the well were overcome by fumes. Dr. Baker entered the well despite the risk with the
view to help the two workmen, however fumes too overcame him. Held, the maxim does not apply.
The defendants were liable.

• In Videan v British Transport Commission (1963) 2 Q.B. 650, held that the defendant is liable to
both the victim and rescuer. The right of the rescuer is independent of that of the victim. Further, the'
right of the rescuer is not affected by the defenses, which may be pleaded against the victim e.g.
contributory negligence of the victim (when a person by his negligence puts himself in danger and
thus rescued by another person).
• The rule in Haynes v Harwood also applies in cases of rescue of property.

(2) Plaintiff the Wrongdoer
• The mere fact that the plaintiff himself is the wrongdoer does not disentitle him from recovering the
loss, which he suffers, unless some unlawful act or conduct of plaintiff is connected with the harm
suffered by him as part of the same transaction.
• In Bird v Holbrook (1828) 4 Bing. 628, held that the trespasser on the defendant’s land is entitled to
claim compensation for the injury caused by spring guns set by the defendant without notice in his
garden. I f the owner of the house deliberately throws stones on a trespasser to his land he will be
liable for the throwing of stones although he can bring action against the trespasser for the
trespass.
(3) Inevitable Accident
• It means an unexpected injury, which could not have been, avoided inspite of, reasonable care on
the part of the defendant. It is important to note that this defence is available only if the accident
occurs during the prosecution of a lawful act and not when the act done is unlawful.

• If A fires at a bird but the pellet from the gun strikes a tree and rebounds and injures B in a different
direction, A can take the defence of inevitable accident [Stanley v Powell (1891) 11 Q.B. 86].
Similarly, if the driver is not able to control the horses, which are startled by a barking dog, and the
plaintiff is thereby injured, the defendant will not be liable [Holmes v Mather (1857)1.
(4) Act of God- vis Major
• Pollock defines the Act of God as- "an operation of natural forces so unexpected to anticipate it." Act
of God is also known as vis major in Latin.
• It may be noted that the expression force majeure is not a mere French version of the act of God; it
is a term of wide import and includes act of God, war, riot, strike, earthquake, storm, flood, fire, etc.
The expression "force majeure" (literally "superior force") means irresistible force or compulsion or
circumstances beyond one's control (such clause is common in a construction contract).

Two important essentials are needed for the defence of act of God:
• (i) There must be working of natural forces (like exceptionally heavy rainfall, storms, tempests,
earthquakes, tides and volcanic eruptions) without any human intervention.
• (ii) The occurrence must be extraordinary and not one which could be anticipated and reasonably
guarded against.
• Act of God is a kind of inevitable accident with the difference that it does not incorporates any
human intervention.
• Accidents may happen by reason of the play of natural forces or by intervention of human agency or
by both, but it is only those acts which can be traced to natural forces, and which have nothing to do
with the intervention of human agency that could be said to be acts of God.
• The rule of strict liability (rule in Rylands v Fletcher) also recognizes act of God to be a valid
defence for the purpose of liability under that rule.

(5) Private Defence
• Private defence is a good ground to negative a tortious liability. The law permits the use of
reasonable force to protect one's person or property. For this, the following conditions have to be
satisfied-
(i) there was an imminent and immediate danger,
(ii) the force employed was not out of proportion, and
(iii) the force is employed only for the purpose of defence.
• The force should not be used by way of retaliation after the danger is over. Further, a clear notice
(warning of danger) must be put up.
• Fixing of broken glass or spikes on a wall or keeping of a fierce dog can be justified for the
protection of the property but fixing up of spring guns without any warning to a trespasser (Bird v
Holbrooke and hot v Wilkes), or live electric wire to keep the trespassers away (Cherubin Gregory v
State of Bihar AIR 1964 SC 205), cannot be justified.

(6) Mistake
• Mistake, whether of fact or law, is generally no defence to an action of tort. Entering the land of
another thinking that to be one's own is trespass, driving of plaintiff’s sheep amongst one's own
herd is trespass to goods, injuring the reputation of another without an intention to defame is
defamation. However, in torts requiring malice, such as the wrong of malicious prosecution and
deceit the liability does not arise when the defendant acts under an honest and mistaken belief.
(7) Necessity
• An act causing damage, i f done under necessity to prevent a greater evil is not actionable even
though harm was caused intentionally. Throwing goods overboard a ship to lighten it for saving the
ship or person on board the ship, or for a competent surgeon to perform an operation on an
unconscious person to save his life, are the examples of necessity.

(8) Statutory Authority
• This defence is founded on the principle that the law, which recognizes a right, can abolish it, modify
it and regulate it.
• Thus, the damage resulting from an act, which the legislature authorizes or directs to be done, is
not actionable even though it would otherwise be a tort.
• This defence has its most important application in actions of nuisance viz. if a railway line is
constructed, there may be interference with private land or the running of train may cause harm due
to noise, smoke, etc.
• In Vaughan v Taff Vale Rail Co. (1860) 5 H & N 679, sparks from an engine of the respondent rail
company set fire to the appellant's woods on the adjoining land. Held that since the respondent had
taken proper care to prevent the emission of sparks and they were doing nothing more than what
the statute had authorized them to do, they were not liable.

• Where an act authorized by the legislature is done negligently, than an action lies.
• In Smith v London & Southwestern Railway Co. (1870) L.R. 6 C.P. 14, the servants of a Railway Co.
negligently left trimmings of grass and hedges near a rail line. Sparks from an engine set the
material on tire. By a heavy wind the fire was carried to the nearby plaintiff's cottage, which was
burnt. Since it was a case of negligence on the part of the Railway Co., they were held liable.
• In Metropolitan Asylum District v Hill (1881) 6 A.C. 193, a local authority, having statutory
authority to erect a smallpox hospital, was restrained from erecting one in a place in which it would
have been a source of danger to the residents of the neighbourhood. This statutory authority was
construed, not as an absolute authority to erect a hospital where the defendants pleased, and
whether a nuisance was thereby created or not, but as conditional authority to erect one if they
could obtain a suitable site where no nuisance would result.

Strict Liability
• Simply stated the rule of strict liability makes the defendant liable for accidental hams caused without any
intention and negligence on his part.
• In other words, sometimes the law recognizes 'no fault' liability.
• The basis of liability is the foreseeable risk inherent in the very nature of the activities. In this respect,
principle of strict liability resembles negligence, but differs, as here the defendant would be liable even if
he could not by reasonable care have avoided the damage.
• The rule laid down in Rylands v Fletcher is called the rule of strict liability (it is not called the rule of
'absolute liability' because of the various exceptions to it).
• The rule laid down in MC. Mehta's case is called the rule of absolute liability i.e., stricter than strict liability
(as it do not recognize any exceptions).
• The basis of liability was laid down by Blackburn J. in these words: "The rule of law is that the person
who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if
it escapes, must keep it in at his risk; and if he does not do so is prima facie answerable for all the
damage which is the natural consequence of its escape."
• Thus, a man acts at his peril and is the insurer of the safety of his neighbour against accidental harms.

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