INTRO TO TORTS

It is the branch of law to which each and every one of us is connected. You
are going around a place and you slip on a soapy floor due to the callousness
of the attendants of that place (Negligence!!) (I actually slipped once while
going around the Dolls Museum in Delhi but didn’t quite know it was
tortious).

See since we are living in a civilized society (to say the least) it is natural
that a social life comes with certain rights and privileges. That is to say that
no one has the authority to enter your house without your permission or
punch you in your nose without any fault of yours (Trespass that is). So each
person is one’s own master and has full rights to lead life in whatever way he
or she wants without any disturbance or interference of any sort. In case
your neighbour is playing loud music at twelve in the night or throwing
garbage in front of your compound you can sue him RIGHTFULLY under the
amazing branch of law known as torts!( by the way this is Nuisance). We
have all rights so long our activities do not interfere with other’s enjoyment
of rights. Hence rights are always accompanied by duties. In short we all
have certain rights but also duties at the same time in order to safeguard
other’s rights. And these duties are legally enforceable just as the rights are
legally protected.

Now what tort law does is basically provides us a solution if our civil rights
have been violated or interfered with i.e. to give a legal solution for the
infringement of our legal rights. The action which causes the injury is
called tort.

You must now be wondering what a legal right is. See law cannot take
responsibility for each and everything that goes wrong in your life. Courts
would obviously not be interested in tackling your love affairs, issues of
moral rights or catfights between siblings. It is only the legal rights which law
promises to uphold and remedy its violation. So the basic civil rights
essential for a healthy and dignified survival like protection from

 personal injury such as automobile accident, slip and fall, dog bite,
  medical malpractice( surgeons leaving knives etc in your body,
stealing & smuggling body organs),
 defect in either manufacturing or design of product,
 wrongful death: survivor recovers economic value of remainder of
decedent’s life,
 patent/copyright infringement,
 defamation (anything which ridicules or lowers the esteem and
reputation of a person in public) ,
 intentional wrongs against a person: assault, battery, false
imprisonment, intentional infliction of emotional distress, and,
 wrongs against one’s property,

constitute rights in the legal sense. A line has to be drawn somewhere and
law redresses only legal injuries. Any injury to your legal right is actionable
and the court will provide a solution in the form of an action for damages.

Damages here basically imply a monetary award for both the tangible and
intangible losses caused by the tort though at times it may assume the form
of an injunction (A court order that orders a party to do or refrain from doing
certain act!), restitution or self-help.

Once a tort is committed and your rights have been violated a plaint is filed
by you. So the victim here is called the plaintiff. The person who has
committed the tort becomes the defendant. Such a person is also known
as a tortfeasor.

Now for the plaintiff to get damages for the tort, a few things need to be
proven in the court-

 Plaintiff has the legal right (or a legal duty existed on part of the
tortfeasor)
 Infringement of the legal right (or breach of the duty)
 Causation (Breach caused an injury which may both be a direct or
proximate consequence of defendant’s act)
  Injury ( Need not just be physical or financial but may be emotional
as well. But most importantly it must result from violation of a legal
right)

Once this has been proved the plaintiff gets the necessary remedy i.e.
unliquidated damages (it simply means that the monetary award is not fixed
and varies from one tort to other) or as the case maybe an injunction or
restitution.

Friends this was just a basic introduction to the magnanimous branch of law
known as torts. There is more to it like the kinds of torts, various defences or
justifications to torts etc. I’ll soon come up with an article elaborating on the
same. Hope you understood it and will be more charged up to enter the
super amazing field of law!

PS: I left B.A. Economics (Hons.) at St. Stephens College and SRCC, DU just
because of torts. Although law on the whole excited me but Torts had its
special importance in helping me decide which way to go!

DEFENCES TO TORTS

Asad and Aymen are the best of chumss who go to the R. Singh International
Stadium at NALSAR to witness a cricket match between NALSAR and XYZ,
Bangalore. During the match a stray ball hits Asad in the eye. Asad cannot
claim damages from the stadium authorities or the batsman who hit the ball
because when he went to watch the match at the stadium he voluntarily
accepted the risk that he was undertaking. Such is a valid defence in tort
law. General defences are a set of defences or ‘excuses’ that you can
undertake to escape liability in tort only if your actions have qualified a
specific set of conditions that go attached with these defences. Most of these
defences can be claimed to escape liability in toto, or in some cases to an
extent. Let’s delve into these defences.

1. Vis Major or Act of God.

When something occurs over which you have no control and it is effected of
accentuated by the forces of nature then you are not liable in tort law for
such inadvertent damage that may arise out of such. However if you were
well aware of the risks and could have possibly taken steps to stop the
wrongful act or damaging act or have in anyway mitigated it then you cannot
duck responsibility under this defence. Constituents of this defence:

• Due to forces of nature or unnatural circumstances.

• You had no control over it and it happened suddenly.

• You had no knowledge or could not do anything to mitigate the damage.

2. Plaintiff the Wrongdoer.

Let’s take an illustration to understand this concept. Ketan and Shailesh are
next door neighbours. However they cannot stand each other and have
frequent quarrels which often turn nasty. In the dead of night Ketan steals
into Shailesh’s property claiming he wanted to take a walk in the latter’s
gardens. Shailesh had a pet dog called YenYalYas who jumped at Ketan.
Ketan files a suit claiming damges from Shailesh. Shailesh can take the plea
of ‘plaintiff the wrongdoer’ as Ketan himself had first trespassed onto his
property and thus could not claim a suit having committed a wrong himself in
the first place.

Should the plea of “plaintiff the wrongdoer” succeed, the plaintiff’s case falls.

3. Volenti non fit injuria.

This principle states that if one voluntarily takes the risk of something then
he may not claim a suit of action of such risk leads to injury. However this
risk must have been taken under free consent and not under coercion and
with the full knowledge of the risk.
A corollary of this principle is Scienti non fit injuria which means that only
knowledge of the risk is not enough to claim defence there must be
acceptance to undergo the resultants of the risk undertaken. There had to be
consent and mere knowledge is not sufficient.

4. Private Defence

Nothing is wrong if done with regard to protecting one’s own self, another
self, one’s property or another’s property against a threat to such. Suppose
Someone points a loaded gun at me and threatens me I do have the right to
bodily harm that person in order to save myself or someone else. However
there are limitations to such rule with regard to the force being used which
must be proportional to the risk presented.

Points to remember about private defence:

Risk must be immediate and sudden.

Force used must be proportionate to the risk at hand.

5. Inevitable Accident.

This is a defence that can be claimed under a situation where inspite of

taking reasonable care and protection the harm could not be averted. This
does not mean absolutely inevitable but unavoidable even after taking
necessary precautions with respect to the harm in question.

Sandipan and Shayak went to the Sunderbans to shoot pheasants.

Sandipan’s bullet skidded off the bark of a tree and hit Shayak while he was
talking on the phone. Shayak was injured and sued his friend for
compensation. The defence of inevitable accident could herein be rightfully
claimed by Sandipan. (Similar facts in Stanley v. Powell).

6. Mistake
This is not a very often claimed defence as it is very hard to fit in a case into
the subtle limits of this defence of ‘mistake’. This refers to a particular case
wherein a person was under mistaken knowledge usually and even after
taking reasonable precautions could not have been reasonably expected to
not commit the so called ‘mistake’.

Rupali runs an auction shop on the beaches of Goa. Shraddha is a Nepalese

entrepreneur who asks her friend Rupali to auction off some ill gotten goods
that the former has smuggled in from Nepal. Rupali ran all the usual checks
on the goods and was reasonably confident that the goods were genuine.
She auctioned off the goods and then the anomaly was detected and the new
owners sued Rupali. Herein Rupali can claim the defence of ‘mistake’.

7. Necessity

Under dire conditions if one does something which results in a tort then once
can usually claim the defence of necessity. Such condition should however be
able to come under the bracket of ‘general good’ or ‘greater good’ (there
little Harry Potter for you!!!) and to prevent a bigger harm.

Anindita and Sanya are nighbours. Sanya’s house was on fire so she
trespassed onto Anindita’s property to draw water from the latter’s well to
douse the fire (prevent a greater harm). Thus she is covered under the
defence of necessity.

Vicarious Liability: (only master- servant

relation dealt in this article)

Vicarious liability is one of the most important part of torts which is basically
concerned with holding the master responsible for the wrongful acts of the
servant done in the course of employment

PRINCIPLES:
 i. We need to remember that tort law has evolved from various
judgements given by the courts. The reason why master was held
liable for the servant’s wrongful acts is because in various cases it
was found that the servant did not have enough resources to
compensate the plaintiff. In this case the very purpose of “damages”
i.e restoration to the position before the wrongful act, was defeated.
ii. The courts then decided to apply two very important principles to fix
liability in such cases. The first is “qui facit per alium facit per
se” meaning he who acts through another is deemed to have acted
himself. The servant’s act in the course of employment are
generally( I use ”generally” because of the recent developments in
vicarious liability-I’ve explained later on) for the master’s benefit
and hence it is only fair that he be held liable
iii. The other principle is “respondent superior”, which means let the
principal be liable for reasons I’ve just mentioned

ESSENTIALS OF VICARIOUS LIABILITY:

There are basically two conditions to be fulfilled for the master to be liable:

1. The person so charged should be a “servant”

2. The wrongful act should be in the “course of employment”

Who is a servant?

For a person to be deemed servant in the eyes of law it is necessary that he

fills some basic conditions:

i. The hire and fire test- Basically his duration of employment is as per
the will of the employer
ii. The direction and control test. This test is quite screwed up because
there are numerous interpretation of “direction” and “control” but in
its essence it can be helpful

Course of employment:
And now for the bitch, the slippery slope- what can be construed as course of
employment? Well to answer that I’ll basically divide the wrongful acts of the
servant into what is under “course of employment” and what is not.

Wrongful acts under the course of employment:

Basically covers two classes of activities:

1. wrongful acts authorized by the master

2. authorized acts done in a wrongful manner (please make sure the
difference in the two sentences absolutely clear)

Acts of negligence by the servant: when the servant in performing some

duty allotted to him does so in a manner which results in a breach of that
duty and causes damage to the plaintiff.

Case law 1: Limpus vs. London Omnibus and Co.

In this case the driver of the bus in order to overtake another bus was
driving in a very rash and negligent manner and hence ended up injuring the
plaintiff. The catch in this case is such a tendency was known to the
employer and he had prohibited the driver from doing so. Decide.

Case law 2: A driver employed by company “A”, dealing with petrol tankers,
goes to the petrol station for filing petrol in the tanker. While the petrol is
getting filled the driver S, lights up a cigarette and negligently throws the
matchstick around causing a nearby petrol tank to burst and causes
irreparable loss to the petrol station. The petrol station sues company “A”.
Will the suit sustain? Decide

(Hint: this has something to do with my usage of the word “generally” earlier
on)

Fraud by the servant: when unknown to the master the servant is

executing his authorised act by committing some fraud.
Case law 3: Lloyd vs. Grace Smith & co

The plaintiff approached the defendant company to help her self off some
properties owned by her as the real estate prices were quite high. The
company directs her to an employee, who claims to have got a buyer and
makes her sign a sale deed which unknown to her was actually a gift deed
transferring the properties in favour of the employee. Decide whether master
is liable.

Theft and mistake by the servant:

Let me give you examples to explain these:

Theft: for example when you give something for dry cleaning to a shop and
one of the workers there steals it, then the shop owner can be made
vicariously liable.

Mistake: for example the owner is a party organizer and tells the servant to
arrange the coke. Now the servant picks up a bottle from the grocery which
has brown liquid and believing it to be coke he hands it around in the party.
Somebody in the party is allergic to alchoholic drinks and develops a medical
condition. The master here becomes vicariously liable for the mistake of the
servant

Delegation of duties by a servant:

If a servant has been authorised by the master to do a certain act and the
servant in performing that either solicits help of another or completely gives
charge to somebody else, the master can be held liable if any damage is
caused by this delegation. The rationale over here is the work if completed
successfully would have ultimately benefitted the master.

Case law 4: Ricketts v. Thomas Tilling Ltd.

The driver who had been authorised to drive the bus, feels tired and asks the
conductor to drive the bus for some time. The conductor while driving the
bus, does so quite negligently and hurts a pedestrian X. X brings a suit
against the bus company. Will he succeed? Decide.

Acts not in the course of employment

Only when the act so done is of the nature that it cannot be related to the
duty that the master had sent for the servant or an activity which had been
“expressly prohibited”, only then will it count as not being in the course of
employment

Case law 5: State Bank of India v. Shyama Devi

In this case a person a person “A” had opened an account with bank “z”. He
had a friend who worked for this bank and so instead of going to the bank to
deposit money he used to give the money deposit to his friend “B” to deposit
in the bank and “A” obtained no receipt for the same. “B” took advantage of
this and kept the money for himself. When such discrepancies were noticed
by A he decides to file a suit. Guide him as to against whom should he file
the suit.

Effect of express prohibition

If a servant acts in defiance of express prohibition of a certain act by the

master, then the master cannot be held liable. A simple warning by the
master to the servant or general guidelines cannot be construed as being
express prohibition. The master should have gone out of the ordinary way to
prohibit the servant from doing that wrongful act.

Case law 6: Twine v. Bean Expresses Ltd.

Kareena was the owner of a travel agency and had put up two notices on all
her vehicles, one that no unauthorised person is allowed to take a lift and the
other that the driver Katrina was expressly prohibited from doing so. Despite
this Katrina gives left to Priyanka, who as a result of Katrina’s negligence
dies in the accident so caused. Priyanka’s heirs decide to sue Kareena for
this. Will they succeed?

When the work is not for which servant was employed

This can best be explained with some case laws:

Case law 7:

Salman is the servant of Amir. Salman before reporting to work at Amir’s

house goes to a tea shop. There he sees his arch-rival Shahrukh and calls
him a “thieving scumbag” and also accuses him of misappropriate behaviour.
Shahrukh decides to file a suit against Salman only. Advise him whether he
should file a case against Amir as well.

Case law 8: Beard v. London general omnibus & co.

A was the driver of a bus owned by Z. A went for lunch to some restaurant
and during this time the conductor S decides to reverse the bus so that they
could be ready to go when A comes back. While doing so he negligently hits
a passer-by D. Help D to decide who he should sue.(Please note very
carefully the difference between the facts of this case and case law 4)

Servants lend to others

When a servant is lent out to another person then the master who
still controls the activities of the servant and not just merely directs his
actions will be the one who is liable. Mostly it is the actual master who is held
liable and not the person to whom the servant has been lent temporarily.
This rule applies unless the permanent master can prove that the servant
was completely in the control of the temporary master and he could not have
controlled the servants action.

Case law 9: Mersey Docks & Harbour board v. Coggins & Griffith
Company G had hired a crane from company I along with the crane driver.
While transferring goods the crane driver lost control and the goods fell on a
passer-by Q who was seriously injured. Who should Q sue?

Giving lift to strangers:

Position in England

In England if the driver of a car is prohibited by the owner to strictly not give
lifts to strangers and the driver disobeying the order of the master does so
then any suit against the master will fail. Compensation can be claimed only
against the servant and the master in such a case cannot be made
vicariously liable.

Position in India

However such a rule is not applicable in India where a driver disobeying

verbal orders of the master gives lift to a stranger the master can still be
held liable.

Solutions to case laws:

case law 1: Clearly the servant has acted negligently and the master then
becomes vicariously liable. if you get confused by the prohibition part just
remember the prohibition is not express enough

case law 2: Though the smoking had nothing to do with the task of the
servant it is just a wrongful way of doing an authorized activity. the clue
about general was to make you realise that the wrongful act needn’t if done
correctly benefit the master.

case law 3: the master in this case is clearly liable as the wrongful act was
in the course of employment and a wrongful way of doing an authorised
activity
case law 4: By a clear application of the principle of wrongful delegation, it
is quite conclusive that the master is liable. Hence X will succeed

case law 5: B’s act was not in the course of employment as he was
receiving money from A only in a personal capacity and not as a clerk with
the bank. hence, A can file a suit against B only and not the bank.

case law 6: the suit will fail. Kareena had through her two notices expressly
prohibited Katrina from giving a lift. If Katrina still does so and causes an
accident then Kareena cannot be made vicariously liable for it.

case law 7: Salman’s act of defaming Sharukh was in no way related to his
employment. Hence he should be advised not to file a suit against Amir.

Case law 8: it was not the conductor’s job to reverse the bus nor had he
been asked by the driver to do so( answer would have been different if this
was the case). Hence the wrongful act is outside the purview of employment.
Thus, only S can be made liable

Case law 9: though company G was using the crane they had no control
over how the crane driver was going to use the crane. This was still with the
company I. Hence, company I will be made liable

Okay before I Wrap Up, I’ve just given you an idea of what vicarious liability
is hope it’s helpful and hopefully I’ll cover some more torts topic for you
guys. I’ve not given you all the case laws because I want to give an exercise
sometime in January. So please keep nagging me for those case laws
because I’ve got a horrible memory.

Also, make at least one of the five areas your very strong point, one can be a
“little” weak and above average to good on the others. That helped me get
through NLU-D and CLAT, GK was my weak point and legal was quite strong
for me.
Plea Bargaining
By Asad -
November 21, 2010
9
6009

We are all aware of the backlog of cases in Courts. Presenting solutions to

this is the need of the hour. One such solution is ‘plea-bargaining’. I shall
explain this in some depth here.

There are three types of plea-bargaining –

1. Charge Bargaining
2. Sentence Bargaining
3. Fact Bargaining.

Charge bargaining

Here, the defendant pleads guilty to charges whose magnitude is lesser than
the offence he is put on trial for. For example, in murder cases, the plea
bargain usually offered is manslaughter (in the UK) In India, for example a
case of rape could be reduced to one of outraging the modesty of a woman.
It occurs when defendant pleads guilty to necessarily included offences.

Sentence Bargaining
In sentence bargaining, for the defendant’s pleading of guilt even before the
case is proven, a lighter sentence is offered. In the US they can be granted
only if it is approved so by the trial judge. It sometimes occurs in high profile
cases, where the prosecutor does not want to reduce the charges against the
suspect, mostly it is due to apprehension of how the media would react.

Fact Bargaining

Here, the defendant may admit to some facts in the court, with an
agreement with the prosecutor so as to not introduce other facts in the case.
This eliminates the prosecutor’s job to prove those facts. This is the least
used type of plea bargaining.

It almost always takes more time and effort to bring a case to trial than to
negotiate and handle a plea bargain. There may be other benefits as well
such as:

1. Getting Out of Jail

2. Resolving the Matter Quickly
3. Having Fewer or Less Serious Offences on One’s Record
4. Avoiding Publicity

For a Judge, the concept of plea bargain is beneficial, as he may dispose of

cases more quickly and efficiently and before. Also, the problem of over-
crowding in jails would get resolved. The constitutional obligation of a speedy
trial and an appropriate sentence could well be achieved by such measures
being undertaken. Now remains the important question of how victims would
be addressed by plea-bargaining. Victims should be given adequate
compensation. Plea bargaining saves the victim from giving uncomfortable
evidence, and also the un-pleasantness of having the crime discussed deeply
in court. Also the system of plea-bargaining assures the victim of justice and
is a win-win situation for all.

In the US, plea bargaining has become much like the norm, than to have the
accused subject to the trial of a jury. The jury vote could swing either way,
but a plea bargain is a fixed and good alternative way. It has become habit
for lawyers to use this in trials where a jury dead-lock is most possible.

In India, on January 11th, 2006, Section 173 of CrPC was amended to bring
about Plea Bargaining. The conditions imposed on plea-bargain are as follows
–

One reason plea bargain is favoured is that it allows criminals who

accept responsibility for their actions to receive consideration for their
remorse and for not causing limited resources to be expended in further
investigating and litigating their case Plea bargaining also allows prosecutors
to settle cases without forcing a victim to endure a lengthy court process or
have to testify in a jury trial.