Abstract: The law of torts or civil wrongs in India is thus almost wholly the English law which is administered as rules of justice, equity and good conscience. This paper can be downloaded in PDF format from IELRC's website at edent in Nilabati Behera1 has profoundly influenced the direction tort law has taken in. Reception of law of torts in India. After English traders set foot on Indian soil they were authorized to exercise judicial powers to govern their servants, i.e.
|Language:||English, Spanish, French|
|Genre:||Politics & Laws|
|Distribution:||Free* [*Registration Required]|
law of torts these notes are prepared by radhika seth, law centre this is meant only for personal use of students. it is not meant for public or wholesale. between all true followers of the Common Law here and on your book is to show tha_ there really is a Law of Torts, not merely a .. Indian Act XVIII. of Law of Torts - LLB - prohanlanlika.tk - Download as PDF File .pdf), Text File .txt) or com powers Engineers, Doctors, Managers & Lawyers in India by providing 'free'.
That is, the compensation that the victim receives gets reduced in proportion to his or her negligence.
Indian courts have endorsed the defences of absolute  and qualified privilege,  fair comment  and justification. Affecting his use or enjoyment of it. Interfering with servitudes and similar rights over the land. A claimant of public nuisance has to establish special loss over and above the inconvenience suffered by the public in general,  as public nuisance is a crime and it would be unreasonable for everyone inconvenienced by it to be allowed to claim.
Creating constitutional torts is a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future. The allowance for immediate lump sum payment the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last.
Medical, hospital and nursing expenses. The loss of matrimonial prospects.
In instances of non-pecuniary loss, the following will be taken into consideration:  Loss of expectation of life.
Loss of amenities or capacity for enjoying life. Loss or impairment of physiological function. Pain and suffering. Aggravated damages may be awarded to compensate victims for their wounded feelings in tortious cases in certain cases. Regard must be had to awards made in comparable cases.
The sum awarded must to a considerable extent be conventional. Punitive damages[ edit ] Being influenced by Rookes v Barnard ,  the India Court ruled that punitive damages can be awarded in only three categories:  Cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by a servant of the government.
Where provided by statute. That he had some knowledge of the danger is not sufficient. A man cannot voluntarily undertake a risk to the extent of which he does not appreciate, When the defendant himself pleads that he did not anticipate and could not have anticipated pieces flying over a distance of 90 feet, he cannot plead that the deceased workman could possibly have anticipated it for himself.
Rescue cases are typified by A's death or injury in rescuing or attempting to rescue B from an emergency or danger to B's life or limb created by the negligence of C.
Is C liable to A? Section 2 of the Unfair Contract Terms Act, provides, 1 A person cannot by reference to any contract term or to a notice given to person generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
When a statute specially authorises a certain act to be done by a certain person which would otherwise be unlawful and actionable, no action will lie at the suit of any person for the doing of that act. Therefore, if a railway line is constructed, there may be interference with private land when the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of spark etc.
No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the Act itself may provided. In Vaughan Verses Taff Valde Rail Company, sparks from an engine of the respondent's Rail Company, set fire to the appellant's woods on adjoining land. Held, that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than that the statute had authorised them to do, they were not liable.
Similarly, in Hammer Smith Rail Coch Verses Brand, the value of plaintiff's property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains.
The damage being vibration and smoke caused by the running of trains. The damage being necessarily incidental to the running of the trains authorised by the statute, it was held that no action lies for the same. However, when an act authorised by the legislature is done negligently, then an action lies.
Sparks from an engine set the material on fire.
Since it was a case of negligence on the part of the Railways Coch, they were held liable. When a statute authorises the doing of an act, which would otherwise be a tort, the injured has no remedy except the one if any provided by the statute itself. The demolition of the wall also resulted in the falling of the roof of the defendant on the wall.
On an action by the plaintiff for the damage to his property, it was held by the court that the defendant would not be liable. For no suit will lie on behalf of a man who sustain a private injury by the execution of powers given by a statute, these powers being exercised with judgment and caution.
But statutory powers are not charters of immunity for any injurious act done in the exercise of them. The act done in pursuance of the statutory powers must be done without negligence.
If it is done negligently an action lies. A breach of any of the aforesaid duties gives a right of action for negligence to the patient. A breach of duty is committed by a doctor when he does not perform the standard and degree of care like reasonable doctor of his time or as a member of his class. In Malay Kumar Ganguly Verses Sukumar Mukherjee, the Supreme Court held that standard of care on the part of a medical professional involve the duty to disclose to patients about risks of serious side effects of medicines or about alternative treatments.
The Court further observed that an act which may constitute negligence or even rashness under torts may not amount to same under section AofIPC. In Gian Chand Verses Vinod Kumar Sharma, though the victim was admitted to he surgical ward she was shifted to the children ward. Due to burn injuries she could not be clothed. She should not have been exposed to the vagaries of weather. The doctor offended to the fact-that the child had been kept in his ward without his permission and forced her to leave the ward.
The doctor has riot given any explanation as to why he shifted her out. The doctor was not only negligent but also he was callous in his approach when he forced the parents to shift the child from the children ward to veranda outside in the cold rainy weather. Thus, the doctor is liable for the death of the child.
The child was found profusely bleeding and with one eye totally gouged near the wash-basin of the bath room. The plaintiff contended replacement of the child whereas the hospital authorities contended that the child had been taken away by a cat which caused the damage to him. The court presumed that the hospital authorities were negligent and awarded compensation amounting Rs.
Gurgaon for sterilization which was done under the State sponsored family planning programme. She developed pregnancy after the operation and gave birth to a female child. Thus there was additional economic burden on the poor person. The Court held that the doctor was negligent per se as he obviously failed in his duty to take care and therefore both State and doctor were held liable to pay damages to the plaintiff.
Contributory negligence is negligence in not avoiding the consequences arising from the defendant's negligence, when plaintiff has means and opportunity to do so. In fact, it is the non-exercise by the plaintiff of such ordinary care, diligence, and skill, as would have avoided the consequences of the defendant's negligence. It, therefore, means that in the case of contributory negligence both the parties plaintiff and defendant are negligent.
The much is justified in accordance with the natural justice also that where both the parties are equally negligent, neither can hold the other liable. But the question arises where both the parties arc not equally at fault then what is the criteria of holding the defendant liable? In English Law the rule of Contributory Negligence was demonstrated for the first time in , in the case of Butterfield Verses Forrester, The facts were that the defendant for the purpose of making some repairs to his house, wrongfully obstructed a part of the highway by putting a pole across it.
The plaintiff who was riding on his horse very violently on the road in the evening j collided against the pole and injured. It was also found as a matter of fact that there I was sufficient light and the pole was visible from a distance of yards.
The court I held that the plaintiff had no cause of action against the defendant as he himself could have avoided the accident by exercising due care. Ellenborough C. One person in fault will not dispense with another's using ordinary care for himself.
In such circumstances a new development took place and the court modified the law by introducing 'Last opportunity rule'. An important case of Devis Verses Mann, illustrate this rule. The facts briefly were that the plaintiff left his donkey with its forelegs tied in a narrow public street. The defendant coming with his wagon at a smart pace negligently ran over and killed the donkey. The court held the defendant liable because he had the last opportunity to avoid the accident by the exercise of ordinary care that is, by going at such a pace as would be likely to avoid the mischief.
It was observed by the court that "although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief.
Were this not so, a man may justify the driving over goods left on public high way, or even over a man lying asleep there, or purposely running against a carriage going on the wrong side of the road. Essential Ingredients — Duty to Take Care Essentials of Negligence According to Winfield, in an action for negligence, the plaintiff has to prove the following essentials, 1.
That the defendant owed duty of care to the plaintiff. The defendant made a breach of that duty. The plaintiff suffered damage as a consequence thereof. Duty of care to the plaintiff3 The requirements for establishing a duty of care are as follows, a Duty means a legal duty. The plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. No general rule defining such duty is in existence.
It is a question of fact which depends on each case. In Donoghue Verses Stevenson, the appellant drank a bottle of ginger beer which was bought from a retailer by her friend.
The bottle in fact contained the decomposed body the remains of a snail. The plaintiff consumed a part of the contents which were poured in a tumbler. The plaintiff brought an action against the manufacturer of the beer to recover damages which she suffered due to serious effects on her health by shock and severe gastro-entritis.
The plaintiff, claimed that it was defendant's duty to have a system of work and inspection sufficient to prevent snails from getting into ginger beer bottles.
The suit was defended on the following two grounds, 1 that the defendant did not owe any duty of care towards the plaintiff and, 2 that the plaintiff was a stranger to the contract and thus her action was not maintainable. The House of Lords rejected both the pleas of the defendant and held that the manufacturer of the bottle was responsible for his negligence towards the plaintiff. The following is the summary of the reasoning given by the House of Lords.
It was categorically stated that the defendant owed a duty of care to the plaintiff. It was the duty of the manufacturer to use reasonable diligence to ensure that the bottle did not contain any noxious or dangerous matter.
According to Lord Atkin, "A manufacturer of products which he sell in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of the reasonable care in the preparation of putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.
The rule that you are to love your neighbour becomes in law 'you must not injure your neighbour' and The answer seems to be that the 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 which are called in question. This appears to me to be the doctrine of privity of contract. In Heaven Verses Fender, as laid down by Lord Esher, "when case established that under certain circumstances one may owe a duty to another, even though there is no contract between them.