Law of Torts Including Motor Vehicle Accidents and Consumer Protection Laws (LLB I Semester)

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Unit-I: Nature of Law of Torts

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1. Nature of Law of Torts: Torts are civil wrongs that cause harm or loss, leading to legal liability for the person committing the wrongful act (the tortfeasor). Torts originated in Italy and were later developed in England.

2. Definition of Tort: A tort is a civil wrong, other than breach of contract, for which the remedy is a common law action for unliquidated damages.

3. Elements of a Tort:

   • Wrongful Act: An act that causes harm to another person.
   • Legal Damage: The harm or injury must be recognized by law (Injuria).
   • Damnum Sine Injuria: Damage without legal injury (no liability).
   • Injuria Sine Damno: Legal injury without actual damage (liability exists).

4. Development of Law of Torts in England and India: The Law of Torts developed through common law in England and was subsequently applied in India. It has been adapted to Indian conditions through judicial decisions.

   • Common Law: judge made law or judicial decisions/precedents. Common law is the Substantive Law for tortious liabilities. Natural right leads to Natural justice.
   • precedent: a judgement in a previous case.
   • Injury: Any damage is considered an injury.
   • Writ: A writ is issued by the King and is a formal written command. These are no longer in existence. These Writs are not to be confused with Constitutional Writs (habeaus corpus, ceritiori etc.)

   Writ Shop (Officina Brivium)

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   • The Writ Shop, or Officina Brivium, was the place where writs were filed in the old English legal system. It played a crucial role in enabling individuals to bring legal claims before the court.

   • Writs were official legal orders issued by the King or his officers, and they allowed plaintiffs to file claims against those who had wronged them. The writ system was the foundation of the common law system.

   • A writ shop would accept various types of claims, including trespass, where plaintiffs could directly file their case without needing extensive proof. This process streamlined the legal system and made access to justice more efficient.

   • There are two types of Writs

   • Action on Trespass: Involves unauthorized entry onto someone’s land or property.

     • No proof is required as trespass is actionable per se.

   • Action on Trespass on the Case: Deals with indirect harm and is actionable per se. Proof is required.

   • Maxims:

   • Ubi Remedium Ibi Jus: “Where there is a remedy, there is justice.” It means if a remedy is available for a wrong, justice can be served. People can pay damages and get away with anything.

     • Example: In cases of nuisance, the plaintiff can claim damages without needing to prove special damage.

   • Ubi Jus Ibi Remedium: “Where there is a right, there is a remedy.” It states that if a person has a legal right, they should have a means to enforce it. People cannot get away with anything they want by paying damages.

     • Example: In Ashby v. White (1703), Ashby was denied his right to vote, and despite no tangible harm, he won the case because his right was infringed.
     • This is the system that has paved the way for the present day legal system.

5. Tort Distinguished from Crime and Breach of Contract:

   • Tort vs. Crime: Crimes are offenses against society as a whole, whereas torts are private wrongs.
   • Tort vs. Breach of Contract: Torts arise from breach of duty imposed by law, while breach of contract arises from duties voluntarily agreed upon by parties.

6. General Principles of Liability in Torts:

   • Fault: Liability is often based on the fault or negligence of the tortfeasor.
   • Wrongful Intent & Malice: Intent to harm or a wrongful motive can increase liability.
   • Negligence: A failure to take proper care, resulting in harm.
   • Liability Without Fault (Strict Liability): In some cases, liability arises without proof of negligence (Ryland’s v. Fletcher).
   • Statutory Liability: Some torts are governed by specific laws/statutes.
   • Parties to Proceedings: The tortfeasor (defendant) and the injured party (plaintiff).

Unit-II: Defenses and Liability in Torts

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1. General Defenses to an Action in Torts: Defenses include:

   • Consent: Volenti non fit injuria (no injury is done to one who consents).
   • Self-Defense: Reasonable force to protect oneself or property.
   • Necessity: Harm caused to prevent a greater harm.
   • Act of God: Natural events that are unforeseeable and inevitable.

2. Vicarious Liability: One person may be held liable for the wrongful acts of another (e.g., employer’s liability for employee’s acts).

3. Liability of the State for Torts: The state can be liable for torts committed by its employees under certain circumstances. However, the Defense of Sovereign Immunity may protect the state in some cases.

4. Joint Liability: Multiple parties may be liable for the same tort. For example, partners in a business may be jointly liable for a tort.

5. Rule of Strict Liability (Rylands v. Fletcher): A person who brings something dangerous onto their land is strictly liable if it escapes and causes harm, regardless of negligence.

6. Rule of Absolute Liability (M.C. Mehta v. Union of India): In cases involving hazardous activities, liability is absolute, meaning the defendant is liable regardless of fault or negligence.

7. Occupiers’ Liability: The liability of landowners or occupiers for harm caused to visitors or trespassers due to unsafe conditions on their property.

8. Extinction of Liability:

   • Waiver: The injured party voluntarily gives up the right to sue.
   • Acquiescence: The injured party’s conduct implies acceptance of the wrong.
   • Release: The tortfeasor is formally released from liability.
   • Accord and Satisfaction: An agreement to settle the matter.
   • Death: Some claims may not survive the death of the tortfeasor or victim.

Unit-III: Specific Torts

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1. Torts Affecting the Person

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The torts of assault and battery are categorized as trespass to the person because they involve intentional acts against an individual’s will or consent. These torts are actionable under civil law and can sometimes overlap with criminal offenses.

Assault

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Definition:
Assault is the act of intentionally causing a reasonable apprehension of imminent harm or offensive contact in another person. The apprehension must be both immediate and credible, though physical harm is not required for the tort to be actionable.

Key Features:

1. Creation of Apprehension:

   • The act must instill a reasonable fear in the plaintiff’s mind that harm is imminent.
   • If the plaintiff knows that the act cannot result in harm (e.g., an unloaded gun visibly lacking bullets), there is no assault.

2. Prima Facie Ability to Do Harm:

   • The defendant must appear to have the immediate capacity to execute the threatened harm.

3. Verbal Threats:

   • Mere words do not constitute assault unless accompanied by gestures or actions that create apprehension of physical harm.

Legal Definition in Criminal Law:
Under Section 351 of IPC and Section 130 of BNS, assault is defined as: “Whoever makes any gesture or preparation intending, or knowing it to be likely, that such act will cause any person to apprehend that criminal force will be used against them, is said to commit assault.”

Essential Ingredients of Assault

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1. Intention and Ability of the Wrongdoer:

   • The defendant must intend to create apprehension, and there must be a prima facie ability to carry out the harm.
   • Example: A raises a knife and moves toward B in an aggressive manner. This constitutes assault if B reasonably believes harm is imminent.

2. Clear, Immediate, and Real Attempt:

   • The attempt must be clear, immediate, and not speculative.
   • Example: A standing at a significant distance and threatening harm without any means to carry it out does not constitute assault.

3. Tests for Assault:

   • Test of Fear: The plaintiff must have a genuine and reasonable apprehension of imminent harm.
   • Test of Distance (Proximity): The defendant’s ability to execute harm must be immediate and physically proximate.

4. Lawful Justification:

   • Actions that are justified under the law (e.g., self-defense) do not amount to assault.

Case Law

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1. B. Venkata Surya Rao v. N. Muthayya (1964):

   • Facts: The plaintiff owed money to a Munisif. When the Munisif demanded repayment, the plaintiff asked for more time. The Munisif called a goldsmith to remove the plaintiff’s earrings as payment. However, an acquaintance of the plaintiff paid the amount before the goldsmith arrived.
   • Judgment: The court held there was no assault as the plaintiff had no reasonable apprehension of immediate harm. The act lacked the immediacy required for assault.

2. Sheffens v. Miers:

   • Facts: A Parish meeting chairman, the plaintiff, was discussing matters when a member, annoyed by a proposal, pushed back his chair, rolled up his sleeves, and moved aggressively toward the chairman.
   • Judgment: The court ruled that this constituted assault because the actions created a reasonable apprehension of imminent harm in the chairman’s mind.

Other Examples

Pointing a Loaded Gun:

• Example: A points a loaded gun at B from a short distance. This constitutes assault as it creates an immediate fear of harm in B’s mind. Even if the gun is not loaded and the plaintiff does not know that, it can constitute assault.

Battery

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Definition:
Battery is the intentional and unlawful application of force to another person without their consent. It has been termed as “criminal force” under Section 350 of IPC and Section 129 of BNS. Unlike assault, battery involves direct or indirect physical contact.

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Essentials of Battery

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1. Use of Force:

   • Any intentional application of force, however slight, qualifies as battery. Physical hurt need not occur for it to be actionable.
   • Examples:
     • Hitting someone with a stick or hand.
     • Throwing water or spitting at someone.
     • Using indirect force such as releasing gas, electricity, or noxious fumes.
   • Important Note: Mere passive obstruction, such as blocking a path without physical contact, does not constitute battery.

2. Absence of Lawful Justification:

   • Use of force must be intentional and lack lawful justification.
   • Example: Acts performed in self-defense or with legal authority (e.g., a security check) are not battery.

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Case Law

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1. Pratap Dagi v. BBCI Railways:
   • Facts: The plaintiff entered the defendant’s railway carriage without a ticket. When asked to leave, he refused. Authorities used reasonable force to evict him, and the plaintiff sued for battery.
   • Judgment: The court held that the use of reasonable force with lawful justification was valid and did not constitute battery.

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Key Features

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1. No Physical Injury Required:

   • Even the slightest unwanted physical contact can constitute battery.
   • Examples:
     • Touching someone aggressively.
     • Throwing a stone that merely grazes their clothing.

2. Intangible Force:

   • Battery may also occur through the use of intangible means like heat, light, or electricity.
   • Examples:
     • Spraying noxious fumes into someone’s room.
     • Using an electric shock to harm someone.

Distinction Between Assault and Battery

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Aspect	Assault	Battery
Definition	The creation of apprehension of harm in the plaintiff’s mind.	The actual application of force to another person.
Nature	Psychological—focuses on apprehension of harm.	Physical—focuses on the intentional use of force.
Physical Contact	No physical contact is necessary.	Physical contact is essential.
Proximity	The act must suggest immediacy and proximity of harm.	Actual physical contact must occur.
Completion	An assault is an attempt to commit a battery.	Battery is a completed act of force.
Examples	Raising a fist, rolling up sleeves with intent to intimidate.	Hitting, spitting, or throwing an object at someone.

General Observations

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1. Sequence of Assault and Battery:

   • Assault often precedes battery. For example, raising a fist (assault) followed by striking (battery).

2. Independent Nature:

   • Assault can exist without battery (e.g., a verbal threat or intimidating gesture).
   • Battery can occur without assault (e.g., hitting someone from behind).

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False Imprisonment

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• Definition:
  False imprisonment consists of the imposition of a total restraint for some period, however short, upon the liberty of another person without sufficient lawful justification. This may include confining the person within four walls or preventing them from leaving a particular place.

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Essential Ingredients of False Imprisonment

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1. Total Restraint on Liberty:

   • In tort law, false imprisonment is constituted only when there is total restraint on the liberty of a person. Partial restraint does not qualify.
   • Case Law:
     • Bird v. Jones: The bridge was closed for a boating event and seating was arranged on the bridge for viewing. The plaintiff used the bridge daily to reach his place of work. Since he could not use this particular route, he sued. The court held that only this particular route was blocked but he was not blocked from reaching his destination from another route. This case established that partial obstruction does not amount to false imprisonment.
     • Herd v. Weardale Steel, Coal, and Coke Co.:
       • Facts: The plaintiff, a coal miner, had a rift with another worker and requested to be conveyed to the surface outside the stipulated timing (9–5). The mine authorities only conveyed the workers down into the mine in the morning and conveyed them back up in the evening. They refused to do so during another time at the request of the plaintiff. He sued for false imprisonment.
       • Judgment: The court held it was not false imprisonment as the worker was not unlawfully restrained.

2. Without Lawful Justification:

   • If there is lawful justification for detaining a person, the act does not constitute false imprisonment.
   • Case Law:
     • Robinson v. Balmain Ferry Co.:
       • Facts: The plaintiff attempted to exit the wharf without paying an exit fee which was required of all persons.
       • Judgment: The court held it was not false imprisonment as the restraint was lawful.

3. No Means of Escape:

   • There should not be any means of escape available to the plaintiff. If an escape route exists, the restraint cannot be termed total.
   • Case Law:
     • John Lewis & Co. v. Tims:
       • Facts: A mother and daughter went shopping. The daughter stole items from the store, and the manager detained them both under ‘Shopkeeper’s Privilege. The daughter knew that items were stolen and kept in the mother’s bag. However, the mother was unaware. The mother sued.
       • Judgment: The court held that it was not false imprisonment because there was lawful suspicion and reason for the detention.

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Knowledge of the Plaintiff

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• It is debated whether the plaintiff’s awareness of their detention is necessary for false imprisonment to exist.
  • Case Law:
    • Herring v. Boyle (1834):
      • Facts: A schoolmaster refused to let a schoolboy leave with his mother until an alleged fee was paid.
      • Judgment: The court held it was not false imprisonment because the boy was unaware of the detention.
    • Meering v. Grahame White Aviation Co.:
      • Facts: The plaintiff, an employee, was detained by company officials on suspicion of theft. The police cleared him, but the detention was deemed wrongful.
      • Judgment: The court held that the company officials’ actions amounted to false imprisonment.

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Remedies for False Imprisonment

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1. Action for Damages:

   • The plaintiff can sue for damages including:
     • Injury to liberty.
     • Loss of time.
     • Mental suffering.
     • Humiliation.
     • Loss of social status.

2. Self-Help:

   • A person is authorized to use reasonable force to escape detention. This is an extrajudicial remedy.

3. Habeas Corpus:

   • Under Article 32 and Article 226 of the Indian Constitution, the Supreme Court and High Courts can issue a writ of habeas corpus.
   • This writ requires the person detaining another to produce the detainee before the court and justify the detention. If found unlawful, the court will order the release.

Defenses to False Imprisonment (Available to the Defendant)

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1. Consent:
   If the plaintiff consented to the restraint, either explicitly or implicitly, the act does not constitute false imprisonment. For example, agreeing to be detained for security checks.

2. Self-Defense:
   The defendant may justify the restraint if it was necessary to protect themselves or others from immediate harm or injury.

3. Contributory Negligence:
   If the plaintiff’s actions contributed to their own detention, the defendant may use this as a defense. For example, refusing to follow reasonable exit procedures.

4. Prevention or Ejectment of Trespassers:
   A property owner may lawfully restrain someone who unlawfully enters or remains on their property.

5. Prevention of Breach of Peace:
   Restraint is justified if it prevents an individual from causing a disturbance or violating public order.

6. Parental and Quasi-Parental Authority:
   Parents or guardians may lawfully restrain their children or wards as part of their duty to care for and supervise them.

7. Inevitable Accident:
   If the restraint occurred due to circumstances beyond the defendant’s control and without intent, it may be excused.

8. Statutory Authority:
   Restraint carried out under legal provisions, such as arrests made by law enforcement under the Criminal Procedure Code, does not amount to false imprisonment.

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Nervous Shock

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• Definition:
  Nervous shock refers to emotional or psychiatric harm caused by a tortious act. It is an injury to the nervous system and brain structure, often caused indirectly through what a person sees or hears.

• Case Law: Note: Earlier cases did not recognise nervous shock as a tort. This changed with the times.

  • Victorian Railway Commissioner v. Coultas:
    • The Privy Council did not recognise the concept of nervous shock and refused to grant relief despite negligence on the part of the railway.
  • Wilkinson v. Downton (1897):
    • Facts: A man falsely told his friend’s wife that her husband had been in an accident. She fainted upon hearing this. He had intended it as a joke.
    • Judgment: The court held the defendant liable for nervous shock.
  • Dulieu v. White & Sons (1901):
    • Facts: A horse van negligently entered a public house, causing a pregnant woman to suffer nervous shock, leading to a birth of a still born child.
    • Judgment: The court recognized the liability for nervous shock resulting from fear of immediate personal injury and held that the defendant was liable.
  • Hambrook v. Stokes Brothers (1925):
    • Facts: A mother was dropping her children at school and returning. She turned her back to her children when she heard the scream of children. A by stander told her that a lorry had hit some children. She went into shock and subsequently died.
    • Judgment: The court held the defendant(Lorry Owner) liable due to proximity and the resultant nervous shock.
  • Owens v. Liverpool Corporation (1939):
    • Facts: A funeral procession was hit by a tram, leading to the opening of the coffin and the corpse fell out. The people were in a state of shock when they saw this.
    • Judgment: The court awarded damages for the nervous shock caused to the mourners.
  • Burhill v. Young (1943):
    • Facts: A pregnant woman witnessed the aftermath of a fatal motorcycle accident, she saw total blood on the street and fainted in shock. She later gave birth to a stillborn child. She sued the legal representatives of the person causing the accident (he died in the accident).
    • Judgment: The court held the legal representatives were not liable as proximity and foreseeability were absent.
  • King v. Phillips (1953):
    • Facts: A mother, observing her child playing on a tricycle from a distance of 80 yards, mistakenly believed a taxi that was reversing had run over her child and suffered nervous shock.
    • Judgment: The court ruled against liability, citing lack of proximity. She could not see her child due to the distance.

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Yet to Cover

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• Malicious Prosecution: Wrongful and malicious institution of criminal or civil proceedings.

2. Torts Affecting Immovable Property:

   • Trespass to Land: Unauthorized entry onto another person’s land.
   • Nuisance: Interference with someone’s use or enjoyment of their property.
   • Public Nuisance: Acts that affect the community at large.
   • Private Nuisance: Acts that affect specific individuals.

3. Torts Relating to Movable Property: Liability arising from interference with another’s possession of movable goods.

4. Liability Arising Out of Accidents:

   • Relevant provisions under the Motor Vehicles Act apply to tort claims involving vehicle accidents.

Unit-IV: Defamation and Other Specific Torts

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1. Defamation: Injury to a person’s reputation through false statements, which can be:

   • Libel: Written or published defamation.
   • Slander: Spoken defamation.

2. Negligence: Failure to take reasonable care, resulting in damage or injury to another.

3. Torts Against Business Relations:

   • Injurious Falsehood: False statements made to harm a business.
   • Negligent Misstatement: Careless words causing financial loss.
   • Passing Off: Misrepresentation of goods or services as those of another.
   • Conspiracy: An agreement between two or more persons to harm another.

4. Torts Affecting Family Relations: Torts that interfere with family relationships (e.g., alienation of affection).

5. Remedies:

   • Judicial Remedies: Remedies awarded by courts, such as damages or injunctions.
   • Extra-Judicial Remedies: Self-help remedies, like re-entry to land or abatement of nuisance.
   • Damages: Monetary compensation for harm.
     • Kinds of Damages: Includes compensatory, punitive, and nominal damages.
     • Assessment of Damages: The process of calculating compensation.
   • Remoteness of Damage: Limiting liability to damages that are reasonably foreseeable.
   • Injunctions: Court orders to prevent or require certain actions.
   • Action Personalismoritur Cum Persona: A tort action dies with the person (the principle of personal injury torts).

Unit-V: Consumer Protection Laws

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1. Consumer Laws:

   • Common Law and the Consumer: The evolution of laws to protect consumers against defective goods and deficient services.
   • Duty to Take Care and Liability for Negligence: Manufacturers and service providers have a duty to avoid causing harm to consumers.

2. Product Liability: Liability of manufacturers for defects in products that cause injury or harm to consumers.

3. Consumerism: The movement aimed at promoting and protecting the rights of consumers.

4. Consumer Protection Act, 1986:

   • Salient Features: A landmark statute aimed at protecting consumer rights and establishing mechanisms for redressal of consumer grievances.
   • Definition of Consumer: Any person who buys goods or avails services for consideration.
   • Rights of Consumers: Includes the right to safety, to be informed, to choose, to be heard, and to seek redressal.
   • Defects in Goods and Deficiency in Services: Legal action can be taken for faulty goods or poor service.
   • Unfair Trade Practices: Practices that mislead or deceive consumers.
   • Redressal Machinery: The Consumer Protection Act establishes District, State, and National Consumer Dispute Redressal Commissions to handle complaints.
   • Liability of Service Providers, Manufacturers, and Traders: These parties are held responsible for harm caused by defects in goods or deficiencies in services.
   • Remedies: Consumers may seek remedies such as replacement, repair, or compensation.

Suggested Readings

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1. Winfield & Jolowicz: Law of Tort, Sweet and Maxwell, London.
2. Salmond and Heuston: Law of Torts, 2nd Indian Reprint, Universal Book Traders, New Delhi.
3. Ramaswamy Iyer: The Law of Torts, LexisNexis Butterworths, New Delhi.
4. PSA Pillai’s: Law of Tort, Eastern Book Company, Lucknow.
5. Durga Das Basu: The Law of Torts, Prentice Hall of India, New Delhi.
6. Ratanlal & Dhirajlal: The Law of Torts, LexisNexis.
7. R.K. Bangia: Law of Torts, Allahabad Law Agency, Allahabad.
8. Vivienne Harpwood: Law of Torts, Cavendish Publishing Ltd., London.
9. Hepple & Mathews: Tort - Cases and Materials, Butterworth, London.
10. D.N. Saraf: Law of Consumer Protection in India, Tripati, Bombay.