Law of Torts

Ashby v. White (1703) 2 Lord Raym 938

Facts: A returning officer unlawfully refused to register the plaintiff's vote. No damage resulted as the candidate for whom the plaintiff wished to vote ultimately won.

Issue: Is an action maintainable for infringement of a legal right even without actual damage?

Held: Yes. The refusal to register a vote was a violation of the plaintiff's legal right and was actionable even without actual pecuniary damage. "Injuria" means a legal wrong, not merely damage.

Principle: Infringement of a legal right is actionable per se without proof of actual damage.

Gloucester Grammar School Case (1410) Y.B. 11 Hen. IV

Facts: A rival school was set up nearby, causing financial loss to the plaintiff's school by drawing away students.

Held: No action lay because competition, however damaging, does not violate any legal right.

Principle: Mere damage from competition is not actionable if no legal right is violated.

Mayor of Bradford Corpn. v. Pickles (1895) AC 587

Facts: The defendant sank a shaft on his own land that disturbed water flowing to Bradford Corporation's springs. His motive was to compel the Corporation to buy his land at a high price.

Held: No liability. A person may lawfully exercise his rights over his own land even if his motive is malicious. Malice does not turn an otherwise lawful act into a tort.

Principle: Malice does not convert a lawful act into a tort (damnum sine injuria).

Town Area Committee v. Prabhu Dayal, AIR 1975 All. 132

Facts: The plaintiff constructed 16 shops without obtaining necessary sanction under the U.P. Municipalities Act. The Town Area Committee demolished the construction. The plaintiff claimed damages alleging malice on the part of the Committee.

Held: No action for damages lies. Even if motivated by malice, a legal act cannot give rise to tortious liability. The plaintiff had himself violated the law, so demolition did not constitute "injuria." Damnum sine injuria.

Principle: Malice alone cannot make an otherwise lawful act tortious. A wrongdoer cannot use the wrongness of another's motive as a shield.

Bhim Singh v. State of J&K, AIR 1986 SC 494

Facts: An MLA was illegally detained by police to prevent him from attending the Legislative Assembly session, depriving him of his constitutional right.

Held: The Supreme Court awarded exemplary damages (₹50,000) for violation of the fundamental right under Article 21. Even without actual monetary damage, the violation of a constitutional right was actionable.

Principle: Violation of fundamental rights can constitute injuria sine damno and attract compensatory/exemplary damages.

Facts: A newsagent hired a tricycle from the defendants. A defective saddle caused him to be thrown off and injured. The contract had a clause (cl. 11) excluding liability for personal injuries. The plaintiff sued both in contract and tort.

Issue: Did the exemption clause exclude liability for negligence?

Held: The clause only excluded breach of contract liability. An action for the separate and independent tort of negligence was still available. Lord Denning held the claim in negligence was founded in tort, not contract.

Principle: Tort and contract may co-exist; an exemption clause is construed to cover strict contractual liability, not negligence unless clearly worded.

Facts: Owners of adjacent lands erected bunds and dug trenches on their own land during floods, diverting floodwater onto the plaintiff's land and destroying crops.

Held: Each owner has a right to protect their own land against floodwater (common enemy doctrine). Erecting bunds is a protective measure; it does not amount to positive diversion. This was damnum sine injuria — damage without legal wrong.

Principle: A landowner may protect his property from flood even if this causes damage to a neighbour, provided he does not actively divert accumulated water onto the neighbour's land.

Facts: A workman (plaintiff) worked on a drill. Stones were regularly hoisted over his head by a crane during his work. He knew of the danger and had even complained to the manager. A stone fell on him and caused serious injury.

Held: The House of Lords held that mere knowledge of a risk does not amount to consent to accept it. The plaintiff had not voluntarily undertaken the risk of the defendant's negligence. The defence of volenti failed.

Principle: Knowledge of risk ≠ Consent to risk. Volenti requires both knowledge AND voluntary acceptance of the legal risk of injury.

Facts: The defendant's servant left a horse-drawn van unattended in a crowded street. Children threw stones at the horses; they bolted and a policeman (plaintiff) was injured trying to stop them and save a woman and children in their path.

Held: The defence of volenti did not apply. The rescue doctrine applied — the plaintiff had acted in an emergency to save others. The defendant who negligently created the danger was liable.

Principle: The rescue doctrine negates the volenti defence. A rescuer who acts to prevent foreseeable danger to others is not deemed to have voluntarily assumed the risk.

Facts: Workmen employed in a factory knew of the dangerous nature of their work. A worker was injured by an explosion.

Held: Merely accepting employment knowing of general dangers does not amount to volenti to specific acts of negligence by the employer.

Principle: An employee's acceptance of dangerous work does not bar a claim for the employer's specific negligence.

Facts: Exceptional storms caused artificial ornamental ponds to overflow and break down bridges on the plaintiff's land.

Held: The defendant was not liable as the extraordinary rainfall was an Act of God which he could not have reasonably foreseen or guarded against.

Principle: If an extraordinary natural event, beyond reasonable foresight, causes the escape of something dangerous, the Act of God defence may succeed even in cases governed by Rylands v. Fletcher.

Facts: A woman drank ginger beer from an opaque bottle purchased for her by a friend. At the bottom of the bottle was a decomposed snail. She suffered gastroenteritis and nervous shock. She sued the manufacturer as she had no contract with him.

Issue: Does a manufacturer owe a duty of care to the ultimate consumer?

Held: Yes. Lord Atkin laid down the famous neighbour principle: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question."

Principle: The manufacturer of a product owes a duty of care to the ultimate consumer. Establishes the neighbour principle for duty of care in negligence.

Facts: A clock tower in Chandni Chowk, Delhi, collapsed killing several people. The tower was old and in disrepair. The Municipal Corporation was responsible for its maintenance.

Held: The MCD owed a duty of care to members of the public passing under the clock tower. By failing to maintain it, the Corporation was negligent and liable for the deaths.

Principle: A public authority owes a duty of care to members of the public regarding structures it controls. Failure to maintain public structures constitutes actionable negligence.

Facts: A Municipal Corporation had statutory power to plant and maintain trees on roadsides under the Bombay Provincial Municipal Corporations Act. A tree suddenly fell on a government clerk walking on a footpath, killing him. No visible external signs of disease were present.

Issue: Does the Corporation owe a duty of care for trees that fall without visible warning signs?

Held: The Supreme Court held that the Corporation was NOT liable. While the Corporation had a duty to maintain trees, the cause of death — a tree suddenly falling in still weather with no visible signs of decay — was too remote. There was no proximity between the statutory duty and the damage suffered. Conditions in India do not require Corporations to keep constant vigil on every roadside tree without visible danger signals.

Principle: A statutory duty to maintain trees does not impose an absolute duty; liability arises only when there is foreseeability, proximity, and an apparent sign of danger. Sudden fall of a healthy-looking tree in still weather may be too remote.

Facts: A terminal cancer patient was admitted to CMC Hospital Ludhiana. When he had difficulty breathing, the oxygen cylinder connected was found empty. Another cylinder was brought but there was no equipment to make it functional. The patient died. Criminal proceedings under Section 304-A IPC were initiated against the treating doctors.

Issue: What is the standard of negligence required for criminal liability of a doctor?

Held: The Supreme Court (3-judge bench) laid down critical principles:

• Negligence in civil law ≠ Negligence in criminal law
• For criminal liability, the negligence must be gross, wanton, or of a very high degree
• The standard for doctors: Bolam test — whether the doctor acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art
• A mere error of judgment, misadventure, or choosing one course over another is NOT negligence
• Guidelines issued: Police cannot arrest a doctor routinely; a credible medical opinion is required before prosecution
• In this case — the empty oxygen cylinder was a hospital systems failure, not criminal negligence by the individual doctor

Principle: Criminal negligence requires gross negligence/recklessness far exceeding simple civil negligence. The Bolam test applies to professional medical negligence.

Facts: Anuradha, a clinical psychologist, developed a rare skin condition (Toxic Epidermal Necrolysis — TEN) on return from the USA. Dr. Mukherjee prescribed Depomedrol (a long-acting steroid) 80mg twice daily — a dose and frequency not sanctioned for TEN patients or by the drug manufacturer. Anuradha died. Her husband Dr. Kunal Saha filed criminal complaint and consumer complaint.

Held: The Supreme Court found civil negligence (not criminal negligence). Dr. Mukherjee and Dr. Halder were found negligent in their treatment of TEN — they administered the wrong drug at the wrong dose and failed to provide supportive therapy. AMRI hospital was also negligent in failing to monitor vital parameters. The Court held civil liability and remanded compensation to the National Consumer Commission. The Court distinguished civil negligence from criminal negligence under 304-A IPC.

Principle: Cumulative negligence by multiple doctors/hospitals can collectively cause death; civil liability can arise even where criminal liability does not. A patient has a right to be informed about risks.

Facts: A 17-year-old brilliant student was admitted for minor nasal surgery. Due to negligence during surgery (cerebral anoxia — oxygen deprivation), he suffered irreversible brain damage and was rendered permanently mentally deficient.

Held: The hospital and doctors were liable for negligence. The Andhra Pradesh High Court awarded comprehensive damages including future pecuniary loss, pain and suffering, and loss of amenities. The Court emphasized that a hospital owes a duty to treat patients with reasonable care and skill and is liable for the negligence of its staff.

Principle: A hospital owes a duty to patients for the negligent acts of its employed staff. Damages for medical negligence include future loss of earnings, pain and suffering, and loss of amenities.

Facts: An accident was caused by the composite negligence of the drivers of two vehicles — a bus (insured by New India Assurance) and a trailer-truck (not insured with New India). The High Court held New India liable only for 1/3rd (the bus's share of fault). The claimants appealed.

Held: In cases of composite negligence, the liability of joint tortfeasors is joint and several. The claimant is entitled to recover the entire compensation from any one of the tortfeasors. Apportionment of liability between tortfeasors is only for their inter se claims (one can claim contribution from the other), but does not affect the claimant's right to full compensation.

Principle: Composite negligence → joint and several liability. Claimant can recover full damages from any one joint tortfeasor. Contributory negligence (plaintiff also negligent) is different from composite negligence (two defendants both negligent).

Facts: A runaway lorry driven by the defendant's employee came down a narrow street. The plaintiff's wife was around the corner. She saw the lorry but not the accident. She feared for her children who had gone around the corner and suffered nervous shock (she later died from it).

Held: The CA (majority) held the defendant liable. The plaintiff was not required to fear for her own safety; fear for her children's safety was sufficient. Distinguished Dulieu v. White (which had limited recovery to fear for one's own safety).

Principle: A plaintiff can recover for nervous shock caused by fear for another person's (e.g., a child's) safety, not just their own. Extends liability beyond the impact theory.

Facts: A pregnant fishwife alighted from a tram. A motorcyclist (Young) negligently collided with a car. The fishwife heard the collision (she did not see it) and later saw the blood on the road. She suffered nervous shock and her baby was stillborn.

Held: The House of Lords dismissed the claim. The plaintiff was not within the area of reasonable foresight. The defendant could not reasonably foresee injury from shock to a person 50 feet away behind a tram. No duty of care owed to her.

Principle: A plaintiff suing for nervous shock must be within the area of foreseeable danger. A mere bystander without special relationship is generally not owed a duty of care for psychiatric injury.

Facts: The plaintiff's husband and three children were involved in a serious road accident. One child died. About two hours after the accident, the plaintiff went to the hospital where she saw her family in distressed states before they had been cleaned up. She suffered severe psychiatric illness.

Held: The House of Lords held the defendant liable. Lord Wilberforce formulated the "immediate aftermath" doctrine — the plaintiff coming to the hospital within two hours of the accident was part of the "immediate aftermath." He also identified the three elements: class of persons, proximity in time and space, and means of communication.

Principle: The immediate aftermath doctrine — a relative who experiences the scene of an accident (or its immediate aftermath) through their own senses can recover for psychiatric injury. Establishes three-element framework.

Facts: The Hillsborough stadium disaster (1989): 95 people were killed and hundreds injured due to police negligence in crowd control. Ten plaintiffs who were relatives or friends of those killed/injured claimed psychiatric illness. Some were at the ground, some saw it on live TV.

Held: All 10 appeals were dismissed. The House of Lords held: (1) Mere presence at the ground was insufficient — the closeness of love and affection had to be proved (brothers had not proved this); (2) Watching simultaneous TV was not equivalent to direct sight or hearing — it could not constitute proximity; (3) Identifying bodies at the mortuary hours later was NOT "immediate aftermath"; (4) Secondary victims must satisfy all three elements of the McLoughlin framework.

Principle: Secondary victims (observers) must prove: (i) close ties of love and affection with primary victim, (ii) physical proximity in time and space, (iii) shock through direct sight/hearing (not TV/radio). TV is generally insufficient.

Facts: The defendant's employees were unloading cargo from a ship at Casablanca. A plank was negligently dropped into the hold of the ship, which was full of petrol vapour. The spark from the falling plank ignited the vapour and the ship was destroyed. The arbitrator found that some damage to the ship was foreseeable but the fire was not.

Held: The Court of Appeal held the defendants liable for all direct consequences of their negligence, whether foreseeable or not. Once a negligent act is established, the defendant is liable for all direct consequences even if the precise nature of the damage was unforeseeable. Foreseeability determines whether an act is negligent, not the extent of liability.

Principle: The Direct Consequence Test — a negligent party is liable for all direct consequences of their negligence, whether or not such consequences were foreseeable. [Overruled by Wagon Mound]

Facts: The defendants negligently spilled oil from their ship (the Wagon Mound) into Sydney harbour. The oil spread to the plaintiffs' wharf 200 yards away. The plaintiffs were welding on a ship at the wharf. Molten metal fell on floating waste, ignited the oil, and the fire destroyed the plaintiffs' wharf. Expert opinion held that oil on water would not ordinarily catch fire.

Issue: Was the fire damage foreseeable? If not, should Re Polemis be followed?

Held: The Privy Council overruled Re Polemis. The test for remoteness of damage in negligence is reasonable foreseeability, not directness of consequence. A defendant is only liable for those consequences which a reasonable person would have foreseen. Since fire damage from oil spilled on water was not foreseeable, the defendants were not liable.

Principle: The Foreseeability Test — a defendant is liable only for the type of damage that was reasonably foreseeable to a person in their position. The kind of damage must be foreseeable; only the extent need not be.

Facts: Post Office workers left an open manhole unguarded, surrounded by paraffin lamps, in a public street. An 8-year-old boy entered the tent and knocked a lamp into the hole. An explosion occurred (caused by paraffin vapour) — an unusual, unforeseeable event — and the boy was severely burned.

Held: The House of Lords held the defendants liable. The type of damage — burning — was foreseeable. The precise manner in which it occurred (explosion rather than ordinary fire) was unforeseeable, but that did not matter. The accident was a "variant of the foreseeable" — still within the same type of risk that had been created.

Principle: Under the foreseeability test, the type/kind of damage must be foreseeable, but the precise manner or mechanism need not be. An explosion causing burns is within the same type of risk as an ordinary fire.

Facts: The plaintiff's husband was burned on his lip by molten metal due to the defendant's negligence. The burn caused cancer in a pre-cancerous condition he had. He died.

Held: The defendants were liable for the full extent of the damage including death from cancer, even though the cancer was unforeseeable. The initial burning was foreseeable, and the "eggshell skull" rule required the defendants to take the victim as they found him.

Principle: Where the kind of injury is foreseeable, the defendant is liable for the full extent of the harm even if a pre-existing condition makes the consequences far more severe than normally expected.

Facts: Rylands employed independent contractors to construct a reservoir on his land. The contractors negligently left some old mine shafts unfilled. When the reservoir was filled, water broke through the old shafts and flooded Fletcher's adjoining mine.

Held: Rylands was liable even though he was not personally negligent. The reservoir constituted a non-natural use of land. The person who brings a dangerous thing onto land must keep it at his own peril and is strictly liable for any escape even without negligence.

Principle: Strict liability — liability without fault. Bringing a dangerous thing onto land and causing its escape leads to liability regardless of negligence.

Facts: Oleum gas leaked from the Shriram Food and Fertilizers plant in Delhi, killing one person and injuring several others. Oleum is a hazardous chemical. M.C. Mehta, a lawyer, filed a PIL. The question arose: was the plant liable without proof of negligence?

Held: The Supreme Court (Bhagwati CJ) laid down a new rule of Absolute Liability, going beyond Rylands v. Fletcher:

• An enterprise engaged in hazardous or inherently dangerous activity that harms any person owes absolute and non-delegable duty to the community
• This liability is subject to no exceptions — not even Act of God, act of stranger, or consent
• The compensation must be commensurate with the magnitude of the enterprise and the harm caused — larger the enterprise, larger the compensation
• This Indian rule is higher and stricter than Rylands v. Fletcher which allows exceptions

Principle: Absolute Liability (Indian rule) — Enterprises engaged in hazardous activities are absolutely liable for all harm caused, with NO exceptions. A constitutional duty of care exists in a welfare State.

Facts: A live electric wire fell across a road due to the state's negligence. A cyclist rode into the wire and was electrocuted. The Electricity Board claimed it had no notice of the break.

Held: The Supreme Court applied absolute liability. Electricity is an inherently dangerous thing. The Board was absolutely liable for the death. The defence that there was no negligence or no notice was irrelevant.

Principle: Distribution of electric power is a hazardous activity. Liability for harm caused by live electrical wires is absolute, applying the MC Mehta principle.

Facts: A government jeep used by a Collector for official tours was being driven back to the garage after a trip. It knocked down and killed a pedestrian. The driver was a government employee. The widow sued the State of Rajasthan.

Held: The Supreme Court held the State liable. Using a vehicle for official purposes was a non-sovereign function (like any private employer using a vehicle). The State was vicariously liable for the negligence of its employee.

Principle: The State is vicariously liable for the torts of its employees when the employee is engaged in a non-sovereign (commercial/non-governmental) function.

Facts: Kasturilal was arrested by police and his gold was seized. While in police custody, the gold was misappropriated by a police officer. Kasturilal sued the State for recovery.

Held: The Supreme Court held the State NOT liable. Maintenance of law and order and arrest of persons was a sovereign function. The power to arrest and detain property was conferred by statute in the exercise of the sovereign power of the State. The State was immune from liability.

Principle: Where an employee causes harm while exercising a power that is inherently sovereign (police power, maintenance of law and order), the State enjoys sovereign immunity and is NOT liable in tort.

Facts: Essential commodities (fertilisers) were seized by government officers and stored. Due to negligent storage, the goods were damaged. The owner claimed compensation from the State.

Held: The Supreme Court departed from the rigid sovereign/non-sovereign distinction and held the State liable. The Court criticized the outdated doctrine and held that no civilized system of law can allow the Government to commit wrongs without remedy. The State is vicariously liable for negligent acts of its servants even in performance of governmental duties, when the act is tortious in nature and causes damage.

Principle: The distinction between sovereign and non-sovereign functions is becoming obsolete. The State cannot be absolved from liability merely because the act was done in exercise of statutory power if the exercise itself was tortious and negligent.

Facts: A Bangladesh national was gang-raped by railway employees in a room in Howrah Station. The Railway Board contended there was no vicarious liability as the employees were not acting in the course of employment.

Held: The Supreme Court held the Railway liable. It was a case of "Constitutional Tort" — a violation of fundamental rights under Article 21 (right to life and dignity). Public employees who commit criminal acts using their position and the State's facilities engage the State's liability. The State owed a duty to protect persons on its premises.

Principle: The State is liable for violation of fundamental rights by its employees — the doctrine of constitutional torts. Sovereign immunity does not protect the State from liability for violation of rights guaranteed under the Constitution.

Facts: A newspaper published articles about the plaintiff alleging fraud. The defence of fair comment was raised.

Held: For fair comment to succeed: (1) the comment must be on a matter of public interest; (2) the underlying facts must be true; (3) the comment must be an honest expression of opinion, not a statement of fact; (4) the comment must not be made with malice.

Principle: Fair comment requires (i) matter of public interest, (ii) true underlying facts, (iii) genuine opinion, (iv) absence of malice.

Facts: The question was whether medical professionals render "service" under the Consumer Protection Act, 1986, making them liable for "deficiency in service."

Held (3-judge bench): Medical professionals who charge for their services are providing a "service" under the CPA. Patients aggrieved by deficiency in service (negligence) can file a complaint before the Consumer Forum. However, free services at government hospitals and services under contract of personal service are excluded. This landmark ruling brought the medical profession under consumer protection law.

Principle: Medical services (for a fee) constitute "service" under consumer protection law. Deficiency in service = medical negligence → consumer complaint maintainable.

Facts: The Lucknow Development Authority (LDA) delayed delivery of an allotted flat for 5 years causing mental agony to the allottee. The allottee approached the consumer forum.

Held: The Supreme Court held that housing services provided by a statutory housing authority are a "service" under the CPA. Public authorities providing services to consumers are amenable to consumer jurisdiction. The authority was liable for deficiency in service. The Court also upheld awarding of compensation for mental agony.

Principle: Government/statutory bodies providing services to citizens are subject to consumer protection law. Compensation for mental agony and harassment is available.

Facts: Laxmi Engineering Works (a small manufacturing unit) purchased a machine from P.S.G. Industrial Institute. The machine was defective. Laxmi filed a complaint under the CPA.

Issue: Whether goods purchased for commercial purposes come under CPA?

Held: A consumer is one who buys goods for personal use, not for commercial resale or manufacturing. Laxmi Engineering, which used the machine for commercial purposes (manufacturing), was NOT a "consumer." However, if a person purchases goods for earning his livelihood by self-employment, they would be a consumer.

Principle: CPA protects personal consumers, not commercial purchasers. A person buying goods/services for earning livelihood through self-employment is a consumer; a manufacturer buying machinery for production is not.