Understanding Negligence and Duty of Care in Tort Law - Prof. Leo, Schemes and Mind Maps of Law

Download Understanding Negligence and Duty of Care in Tort Law - Prof. Leo and more Schemes and Mind Maps Law in PDF only on Docsity! Basic concepts of Torts 1 Basic concepts of Torts Date Type Reading notes Definition: Tort - Tortum in Latin → Implies twisted conduct → Wrongdoing. Civil wrong between 2 individuals with unliquidated damages containing a breach of duty that is fixed by law. Infringement of Right in rem → (Right in rem - Agaist a thing) Right in rem is available against common/globe as tort is common law and the action for damages in common law action. It justified right to compensation Tort is found in common law and uncodified. Torts should not be codified as this will restrict the power of judges to adjudicate upon these issues and torts is liable to change as there is no set law or definition. Torts do not involve breach of contract or breach of trust. It is a wrong independent of contract for which the appropriate remedy is the common law action for unliquidated damages. The basic principle behind tort law is that no one should be harmed by the act of others. An act in law shall prejudice no man. Liability under tort arises when a wrongful act amounts to violation of legal right. Damage - Harm or loss suffered or presumed to be suffered by a person as a reulst of the wrongul act of another. Damages - Sum of money awarded. Elements of Tort: There must be a wrongful act committed by a person. (DOC and breach of DOC) The wrongful act must give rise to legal damage or actual damage. (Causation) @August 17, 2023 Basic concepts of Torts 2 The wrongful act must be of such a nature so as to give rise to a legal remedy in the form of an action for damages. (Damages) Structural features of Tort: Tort suit is bilateral: only 2 parties Victim centric → State is not a party There is a remedy by compensation Unliquited - Extent of damages depends on the situation Remedying a social problem. Rights: 1) Public and Private: Private: Relating to mind, body and property Rights which belong to a particular person against the world. Eg: Right of bodily safety Public: Right vested in a person by a state or authority. Belong to common members of the state generally. Right in personam - Right of the individual against a specific person 2) Actionable per se v. Actionable on proof: Actionable per se: Does not require proof of damages to be actionable. Such a tort is actionable simply because it happened. Eg: Defemation and Trespass. Res Ipsa Locquitur Absolute right Ashby v. White Basic concepts of Torts Torts. Inflicted without consent Unliquidated damages (Injured party compensated by wrong-doer) Right in rem — Private Wrong ‘Consent Damages Rights Duties Duty prescribed by law Society Not exactly against society at large, against private parties; does not harm in that grave a sense as criminal law Privity No requirement Aim Allocate/prevent losses Violation Ofa specific duty ‘Codification Uncodified Intention May/may-not Contracts Crime Consent between —_ No consent the two parties Liquidated Unliquidated; damages; no Punitive damages exemplary/punitive damages as such Right in personam — Right in rem — Private wrong Public Wrong (state takes cognizance) Duty prescribed in Duty prescribed the contract, by the by law will of the parties Against a private Against society at person or party toa large, harms the contract moral fabric; harms of a grave sense, hence it isa public wrong. Mandatory No requirement requirement Uphold promises Deterrence, made under the restoration, contract retribution Of either general or specific duty Codified Codified No need Mens rea Quasi-contract No consent Liquidated, generally Making good of ‘unjust enrichment No duty (Obligation to give back is by the law, not by contract) Codified Case laws- Duty of Care 1 Case laws- Duty of Care Date Type Reading notes Cases Donoghue v Stevenson [1932] Doctrine of negligence.pdf Anns v Merton LBC [1978] AC 728 - Case Summary.pdf Caparo v Dickman Case Summary.pdf Case Summary_ Jacob Mathew vs. State of Punjab.pdf Negligence It is the breach of duty of care which resulted in damage to the plaintiff which was undesired by the defendent to the plaintiff. Neglect of use of ordinary care or skill towards the person. Cause of action for negligence occur only when the damage occurs. Damage is the starting point of course of action. → Jacob Mathew v. State of Punjab For an action of negligence to succeed, there must be 3 things: The defendent owes DOC to the plaintiff - DOC is a legal obligation on a person requireing adherence to reasonable standard of care to avoid careless acts that could foreseeably harm others. Breach of DOC Breach of DOC causing damage A privilege or liberty yesterday may become a duty of today. 1. Foreseeability and Proximity: (Prima Facie DOC) 1) Donogue vs. Stevenson: (1932): DOC Facts: In August 1928, Mrs. Donogue’s friend bought her a ginger beer from a Cafe. The beer was in a dark opaque glass. She consumed half of the content and poured the rest into @August 7, 2023 Case laws- Duty of Care 2 a tumbler where should found the decomposed contents of a snail in it. This cased her alledged shock and gastro entiritis (Inflammation in intenstines and stomach). She was not party to any contract. So, she sued the manufacturer Stevenson. This went to House of Lords. Issue: Whether the manufaturer owed Mrs. Donoghue a duty of care in the absence of contractual relations? Decision: Majority lead by Lord Atkin 3:2 It overruled the decision in Mullen vs. Barr & Co. There need not be a contract relationship to establish duty of care. A manufacturer owes a duty of care to the customer who they intend to use their product. Development of neighbourhood principle: A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure your neighbour. Who is a neighbour: Peron who are closely and directly affected by the person’s act that the person ought to have in contemplation while carrying the act or omission. Analysis: Established tort as seperate from contract law. Neighbourhood principle- Economic loss: Hedley Byrne v Heller. (2) Between the party who ows the duty of are and the party to whom the duty of care is owed, there exists a relationship categorised by law as ‘proximate’ and ‘neighbour’ and the situation should be as such that the court considers it fair, just and reasonable. Requirements- Forseeable, Proximate and Fairness 3) Home Office v. Dorset Yacht (1970) Facts: Case laws- Duty of Care 5 5) Caparo v. Dickman (1990) Tripartite test for DOC Facts: Caparo had brought shares in the company Fidelity based on the result of the audit report prepared by the accountant firm Dickman. It was later found that the profits in the report was misrepresented and the company was in loss. Caparo sued the defendent (accountant firm). Decision: HOL reversed the decision of COA. No duty of care arised in relation to existing shareholders. The only DOC the auditor’s owed was to the governance of the firm. There had to be knowledge that the shareholders would rely on this report in regards to the transaction. The judges noted that the audit report are regularly carried out which differs from reports carried out for specific purposes and for a specific audience. The accountants owed no duty to the entire public who might or might rely on the report. The time the auditors prepared the report, they know that the report is prepared for a specific purpose for specific audience (Morgan Crucible vs Hill Samuel). Caparo’s principles: Harm must be reasonably forseeable as a result of defendent’s conduct. The parties must be in relation of proximity. Must be just, fair and reasonable to impose liability. The court held that the purpose of statutory requirement for an audit of public companies under the companies act was the making of a report to enable shareholders to exercise their classic rights in general meeting. It did not extend to the purpose of information to assist shareholders in the meeting odfdecision as to future investments in the company. The court said that forseeability alone is not the only test of proximity. The practical set od sitation should be analyzed. Relationship must be one where the accountant preparing the accounts was aware of the particular person and purpose for which the report would be used. Case laws- Duty of Care 6 No duty shall be imposed for an indeterminent amount for an indertermined time and indeterminent class. 6) Sutherland Shire Council v. Heyman (1985): Increamental approach Fact: The plantiff bought a house which had bad foundations. The council did not inspect the footings. If they had done it, they would not have approved it. The plantiff sued the council for negligence in approving in approving plans for the erection of the house. Issue: Does the council owe DOC to the owners of the house to ensure it is built to specifications? Held: No breach by the council. Authorities were not immune from common law liability but a public authority not under a statutory obligation to do something will not be held liable for the failure to do so. Failure to act is not negligent unless there is a duty to act. Omissions ar eonly negligent when you were under a duty to act. Statutory power is not same as Statutory duty. The statute must impose a duty. The case held that public authorities could also be held liable for negligence. It further held that the law should develop categories of negligence incrementally with analogy rather than massive extension of prima facie DOC restrained only by indefinite considerations. Increamental approach for DOC: Establishing DOC: Whether the defendent had a responsibility to take reasonable care to prevent damages to the plaintiff → Foreseeability and proximity. Case laws- Duty of Care 7 Standard of Care: The court asseses whether a reasonable person would do in a similar situation. Breach of Duty: Fall below the standard of care. Causation: Breach of Duty was the direct cause of the harm they suffered. Link between plaintiff’s action and defendent’s injuries. Damages: Actual harm suffered → Physical injury, emotional injury, economic loss etc. Examples: 1) MPRTC v. Basantibhai (1971): Foreseeability Facts: Chunnilal was a driver in the employment of Central Provinces Transport Services (C.P.T.S.). The C.P.T.S. was owned and run by the State Govern ment till the formation of the Madhya Pradesh State Road Transport Corporation in 1962. There were serious communal riots in September 1956. During that period curfew was imposed and no person could move during curfew hours except under a pass issued by the District Authorities. On September 16, 1956, Chunnilal started from his house in the morning at about 6 O' clock for going to the Jabalpur depot of the C.P.T.S. for joining his duty. He had been given a curfew pass (i.e. despite the volatile situation, he was expected to work). Before he could reach the depot of the C.P.T.S. he was stabbed by some miscreant in the abdomen, as a result of which he died. Held: There existed a duty-situation and the management of the C.P.T.S. was liable in negligence for not taking adequate precautions for the safety of the deceased, either by making arrangement for his protection while he was on his way to work, or by closing the business temporarily. If no such arrangement for the protection of the deceased was possible, requiring an employee to come to work in such a situation is itself such an act from which harm to the employee is foreseeable and the employee being closely and directly connected with the act of requiring him to join his work, the employer must have his safety in contemplation. Case laws- Duty of Care 10 Whether the person can be held liable for psychiatric injuries even though there had been no physical injury? Decision: The defendent was held liable. As the claimant is a primary victim, it did not matter that that C’s psychiatric illness was not reasonably foreseeable as the risk of C’s physical injury was reasonably foreseeable, even though C did not suffer physical injury. Primary Victim and Secondary Victim: (Different remoteness test) Primary victim: Who are involved in the accident. → As D is under DOC not to cause foreseeable physical injury, the question of foreseeablity of psychiatric injury is unnecessary. Secondary victim: Not directly involved but suffered from what they see or hear. → Foreseeablity of psychiatric injury is a crucial ingredient. In both cases, the injury must be a recognisable psychiatric injury. Thin Skin Rule (Applies to primary victims only): There is no difference between eggshell skull and eggshell personality. Personal injury includes both physical and psychiatric injuries. There is no justification for considering these 2 as seperate injuries. 5) Roshwell v. Chemical Co. (2008): Facts: The Claimant had been exposed to asbestos but did not know until he was informed by his doctor 30 years later. The risk of developing a health condition led C to clinical depression. C argued that eventhough no physical injury occured, the physical injury was forseeble. Held: Case laws- Duty of Care 11 C’s psychiatric illness was not caused by the immediate effects of a post traumatic event. It was triggered by his awareness of risk of developing a condition. The event causing physical and personal injury is not same here unlike in Page vs, Smith. In Union of India vs. United India Insurance Co. limited, it was decided that the omission to act (not putting fences and propert structures in railway lines), The railways had a DOC. The 2 principles needed to check DOC was not satisfied in this case. In King vs. Liverpool city council, Act of 3rd party would not make the defendet liable. Breach of Duty 1 Breach of Duty Date Type Reading notes To succeed in the claim of negligence, the plaintiff after showing DOC, should show that the defendent breached the DOC. Objective standard: The standard based on factual measurements. Magnitude of risk (Bolton v. Stone) Importance of the object to be attained Possibility of precautions (Bolam case) (Bolam overuled in Bolitho’s case) The defendent failed to do what an ordinary, prudent person would have done or would not have done in that particular position. The ordinary prudent person is someone who has basic skill and care. Eg: Doctos have a standard of care that is different from nurses. Standard of a reasonable man: Striking a balance between risk involved and the consequence of not taking it. Degree of care varies upon the particular situation and the resonable standard of care varies in situations in that case. Bolton vs Stone (1951) Facts: The plantiff was hit by the cricket ball from the neighbouring cricket pitch outside of her home. The cricket ground had a fence of about 17 foot tall and incidents like this was extremely rare. The claimant sued the cricket club for negligence. Issue: What factors were relevant to determine how the reasonable person would behave Held: @August 24, 2023 Causation in fact 1 Causation in fact Date Type Reading notes In deciding whether the damage was caused by defendent’s wrongful act, but for test is used. But for the negligence of the defendent, the damage would not have occured. Hotson vs. East Berkshire: Loss of chance case Facts: The plaintiff fell from a tree causing him spinal injury. He went to the hospital where treatment was delayed. The diagnosis was made but it was incorrect. It was found after 5 days that the fall caused hip damage that could give permanent disability. The plaintiff claimed that the negligence of the hospital caused the disability. The chance for the prevention of the disability was 25%. Issue: Whether the fall or delayed treatment caused the disability? Held: The defendent was not held liable. The disability could not have been prevented eventhough the doctors had done propoer diagnosis. The delay was not cause the cause of his disability. Thus, whilst the defendant had indeed been negligent in his original assessment, it remained that loss of a chance was not a form of injury for which one could claim damages for tortious negligence in relation to medical problems Same judgment in Gregg vs. Scott Bonnington Castings v. Wardlaw @August 24, 2023 Causation in fact 2 Facts The employee of a dressing shops foundry was exposed to noxious dust from swing grinders, allegedly causing him to contract pneumoconiosis. The employer had neglected to ensure that the dust-grinders were compliant with Reg 1 of the Grinding of Metals (Miscellaneous Industries) Regulations 1925, leading to noxious dust containing minute silica particles. Issues In order for the employer to be liable, the statutory breach must be shown to have caused the pneumoconiosis. The first issue concerned the applicable standard of proof concerning the employer’s fault as well as to which party bears the onus of proof. The second question concerned whether the dust from the employer’s swing grinders caused the pneumoconiosis to satisfy the standard of proof. Decision/Outcome As a point of law, the House of Lords held that, in personal injury claims for breach of an employer’s statutory duty, the onus of proof lay on the injured employee to show that the the breach caused or materially contributed to the injury. This overturned previous authorities that placed the onus on the employer to show that they did not cause the injury. As to the standard of proof, the Court held that the employee must meet the ordinary standard of proof in civil actions, namely to establish on the ‘balance of probabilities’ that the breach of duty caused or materially contributed to the injury. On the facts of this case, the Court held that the Employer’s breached their statutory duties under the 1925 Regulations, and that the consequent noxious dust did in fact materially contribute to the employee’s contracting of pneumoconiosis. Thus, the employee met the onus and standard of proof required and the employer was held liable for the injury McGee vs. National Coal Board: Material contribution to the harm. Case laws: Damnum Sine Injuria, Injuria sine Damnum 1 Case laws: Damnum Sine Injuria, Injuria sine Damnum Date Type Reading notes Ashby vs White: Facts: The defendent wrongfully failed to register the vote of the plaintiff in an election. It turned out the the candidate to whom the plaintiff voted had won. Issue: Whether a party can recover damages for legal damage eventhough there is no actual damage. Held: The defendent was held liable. Right to vote is a common law right. Obstruction of such right should give rise to action for damages. Gloucester Grammar school case: Facts: The defended worked in a school as a professor. Later, he started a new school and reduced the fee of the Gloucester grammar school. Students started joining this school which resulted in the loss of the old school. The owner of the old school brought action for damages. Issue: Can the monetary loss suffered without legal damage be actionable in law? @August 23, 2023 Omission & Commission 2 Committing an act which the law says ought not to have been done. Voluntary and involuntary act: Voluntary act: Ability to control one’s behavior Legal action Involuntary act: Inability to control one’s behavior No legal action (Olga Tellis vs Municipal Corp Bombay) - An act committed out of poverty or helpness in not an involuntary act. Mental elements for voluntary act: Malice: Intentional doing of a wrongful act: Malice in law; Implicit malice Improper motive: Express malice; Actual malice; Malice in fact Intention: No can be sure of what was in another’s mind because what a person thinks can be inferred only from his conduct. An act is intentional as to its consequences if the person concerned has the knowledge that they would result and also the desire that they should result. Negligence: When the consequences are not adverted to though a reasonable person would have foreseen them. Omission & Commission 3 Recklessness: Sometime called gross negligence Indifference towards the willingness to run the risk. Motive: Ulterior object or purpose of doing an act. Intention is the immediate object but motive is the ulterior object. Riggs vs Palmer: The person killed his grandfather to inherit his will. The intention here is to kill his grandfather. The motive is to inherit the properties. An act which does not amount to legal injury cannot be actionable because it is done with a bad motive. Res Ipsa Loquitor 1 Res Ipsa Loquitor Date Type Reading notes The thing speaks for itself. The thing - The incident of neglect which resulted in damage. Burden of Proof never shits. Onus of proof keeps on shifting. "Res ipsa loquitur" is a Latin phrase that translates to "the thing speaks for itself" in English. It's a legal doctrine used in tort law (a branch of civil law that deals with wrongful acts that result in injury or harm to someone) to establish a presumption of negligence in certain cases where direct evidence of negligence might be lacking. In essence, when an accident or injury occurs and the circumstances surrounding it are such that they wouldn't typically happen without someone's negligence, the doctrine of res ipsa loquitur allows a court or jury to infer that negligence was the likely cause. This doctrine can be applied when: 1. The event is of a kind that typically doesn't occur without negligence of the defendent. 2. The event was caused by an instrumentality or condition within the exclusive control of the defendant (the party being accused of negligence). 3. The plaintiff (the injured party) didn't contribute to the event through their own actions. For example, if someone is walking down the street and suddenly a heavy object falls from a building and injures them, the circumstances might be such that the doctrine of res ipsa loquitur could be applied. The injured party might not have direct evidence of negligence, but the fact that the object fell and caused harm could suggest that someone was negligent in maintaining the building or its surroundings. @August 24, 2023 Duty to the unborn person 1 Duty to the unborn person Date Type Reading notes Basic concepts: FOR (Mother should be held liable): Pro life movement - Article 21 - Every human have the right to life and dignity. The foetus is treated as a human life at a point when it gains the physical form of a human. Unborn child is a living entity The law recognises the rights and duties of the child in a mother’s womb and the question is whether the child is born alive or not. A person owes a duty of care to those in proximate relation with a reasonable standard of care. Mother and foetus are in proximate relation. A reasonable prudent person’s (mother) would know that the act of the mother would affect the foetus. Kamloops Test: (As decided in Dobson v. Dobson) Is the relationship close enough to create a reasonable duty? Are there any public policy grounds to negate this duty? The basis of duty of care is the resonable ground → A reasonable prudent person knows the consequences of the act to others in proximity. Here the mother knows that the unborn child is in proximity and the unborn child is a living entity which will be affected by the actions of the mother. The Series of events happening in the life of mother while she is pregnant largelys shapes the life of the baby when grows up. So the mother owes the duty of care to the foetus. @September 12, 2023 Duty to the unborn person 2 Agency and choice - Choice given to a person. She chooses what happens with her body. The foetus becomes a seperate legal entity - The foetus development is a living process in which science says that the foetus has live once the physical form of foetus is established. 1st rebuttal - living entity Reasonable care Labor and work for the living - Here the talk is about the negligent act. Foetus at the time of harm does not come into a form /entity- Arhan If there is a negligent by the mother, can the foetus sue the mother? Legal entity - A life begins through the process in the foetus development and its not that the foetus becomes an entity only after it comes out of the women’s body. The developmental process is the precondition to a seperate legal entity. Choice and Agency of the mother: Reasonable care- Affecting the foetus. Rebuttal: The women AGAINST (Mother should not be held liable) Pro choice- Its women’s right to choose what’s happening with her body Article 21- Right to health and live with dignity. Purpose of the MTP act was for safer abortions. MTP 2021 amended 1971 act to provide a comprehensive abortion care to all. Kamloops Test Proximate relation Public policy to negate the duty: Bodily autonomy and privicy of the mother. Equality and liberty of the mother. Duty to the unborn person 3 Impossible to judicilly define the reasonable standard of conduct for pregnant women. → Dobson v. Dobson Cases: Dobson v. Dobson: (1999) Facts: Cynthia Dobson, a pregant women in her 27th week was driving a care negligently which lead to an accident permanently injuring the foetus and causing mental and physical injuries to her son. The grandfather of the son sued the mother for damages. Issue: Should a mother be held liable for damages to the foetus in the womb caused by her neglugence? Held: Pregnant women do not owe duty to foetus. The kamloops test is to see whether a mother owed a duty of care: Is the relationship close enough to create a reasonble duty? Are there any public policy ground to negate the duty? Public policy implication negate the duty: It would violate the privacy and autonomy of the women. It is impossible to judicially define the reasonable conduct of a pregnant women. McLachlin - It would violate the liberty and equality of the women. Major (Dissent) - Extending the duty to foetus would not change the reasonable conduct of the women. Zepeda v. Zepeda: (2001) Facts: The defendent is the father of the plaintiff. The defendent had sexual intercourse with the plaintiff’s mother in the promise of marrying her but did not marry her. The plaintiff Duty to unborn - Cases 2 Mckay v. Essex Health Authority: Issue: Whether a child has a cause of action for being allowed to enter life damaged? Decision: Claim struck down. Doctors are not under DOC to foetus to terminate its existence if it was disabled. All they could do is give advice to the mother. No recognized cause of action for a claim by a disabled child for his birth. Comparison should be between the value of non existent and disabled existent. How can a court evaluate non existent? Occupier’s liability 1 Occupier’s liability Date Type Reading notes Reading Material https://www.legislation.gov.uk/ukpga/Eliz2/5-6/31/section/1 Cases https://www.lawteacher.net/cases/wheat-v-e- lacon.php https://lawprof.co/tort/occupiers-liability-cases/ferguson-v- welsh-1987-1-wlr-1553/ https://lexpeeps.in/municipal-corporation-of- delhi-v-subhagwanti-air-1966-sc-1750/ Section 1(2): There is an occupier and visitor/visitors and a duty is imposed on the occupier which is owed to the visitor. Who is a lawful visitor or an invitee or licensee? A person who is given invitation or permission by the occupier to enter the premise and who is believed to the invitee as per common law. Wheat v. Lacon - Ther can be more than one occupier but the key issue is the control over the premises. Facts: The plantiff rented a room in the pub which was owned by the defended (Lacon & Co.) and the room was managed by one indivudal. One night, the plantiff fell from the staircase which was dimly lit and died. The court held that the defendets were not liable because using the staircase was not dangerous and a reasonable prudent person would have used the starcase carefully and the accident was not forseeable eventhough as occupiers, the defendents have a duty of care owed to the plaintiff. The Key issue here is about the occupier: The court decided that both the manager and Lacon & Co. were joint occupiers. Occupier is someone who as a sufficient degree of control over the premises where the vistors lawfully entered. @July 29, 2023 Occupier’s liability 2 There can be more than one occupier and an occupier need not have exclusive control of the premise. Section 1(3)(a): The occupier having the obligation on any fixed or moveable structure including any vessel , vehicle or aircraft. Underlying premise- Nature of the occupancy The applicability of the act extends to moveable property also. Section 2 (1): The occupier has to owe the same duty ‘common duty of care’ to all his visitors except he is free to change the nature of the duty by agreement or otherwise. (2): Common duty of care: Duty to take care in all circumstances that is reasonable to see that the visitor is safeto use the premise for the purposes he is invited or permitted by the occupier. Child visitor: 2(3)(a): Child visitor: The occupier must be prepared for children to be less careful or reasonable than adults and should owe the duty of care in such a manner. 2(3)(b): The occupier may expect that a visitor will gaurd against any special risks. Liability of independent contractors: 2(4)(b): When a damage is caused to the visitor due to any work of construction/repair/maintenance done by any independent contractor hired by the occupier, the occupier is not liable for damages if he had taken reasonable care in hiring and entrusting that contractor with regards to his competency and the work done. Implied term in contracts: Section 5(1): The duty owed to the person who enters/use or bring/send goods to the premise is dependent on the term to be implied in the contract by conferring its right is the common duty of care Occupiers Liability Act - 1984: Duty to persons other than visitors like trespassers. The duty to take care: Nervous Shock - Concept + Cases 1 Nervous Shock - Concept + Cases Date Type Reading notes Mental suffering: Mental suffering after physical suffering Mental suffering without physical suffering Mental suffering which does not amount to psychiatric illness. Mental suffering which amounts to psychiatric illness. Primary victims Secondary victims: Must be allowed damages if control mechanisms are satisfied: Close love and affection Present at the accident or immediate aftermath Injury direct cause due to accident. Impact theory: Person should be in the vicinity of the accident - Geographical area. Page v. Smith (1996); Facts: The Claimant was involved in car collision due to the defendent’s negligence which caused no physical injury but resulted in chronic fatique syndrome which became permanent after 25 years. Issue: @October 27, 2023 Nervous Shock - Concept + Cases 2 Whether the person can be held liable for psychiatric injuries even though there had been no physical injury? Decision: The defendent was held liable. As the claimant is a primary victim, it did not matter that that C’s psychiatric illness was not reasonably foreseeable as the risk of C’s physical injury was reasonably foreseeable, even though C did not suffer physical injury. Primary Victim and Secondary Victim: (Different remoteness test) Primary victim: Who are involved in the accident. → As D is under DOC not to cause foreseeable physical injury, the question of foreseeablity of psychiatric injury is unnecessary. Secondary victim: Not directly involved but suffered from what they see or hear. → Foreseeablity of psychiatric injury is a crucial ingredient. In both cases, the injury must be a recognisable psychiatric injury. Thin Skin Rule (Applies to primary victims only): There is no difference between eggshell skull and eggshell personality. Personal injury includes both physical and psychiatric injuries. There is no justification for considering these 2 as seperate injuries. McLoughlin v. O’ Brian (1983): Foreseeability Facts: The husband of the claimant and their children were involved in a road accident round 4 pm caused by a lorry driven by Defendent 1 and owned by Defendent 2. The claimant was informed of the accident at around 6 pm by a neighbour who drove her hospital. In the hospital, she learned that her youngest child had died and saw the grievous injuries suffere by her husband and children. This caused her shock resulting in psychatric illness and brought an action for negligence. Nervous Shock - Concept + Cases 3 Issues: In order to recover damages for negligently induced nervous shock, Claimant must demonstrate that she was sufficiently proximate to the event. HOL was to determine the nature and extent of the duty owed by D to persons whom his actions might cause psychiatric damages Decision: Defendent is liable. Recovery in such cases was not limited to those who were participants in the event or a close relative. Chadwick v. British Railway Board The duty of the defendent confirmed to the extend to those who came upon the ‘immediate aftermath’ of the incident even if they do not see or hear the incident with their unaided senses. Test for recovery of damages for personal injury resulting from nervous shock: Close familial relation (excludes bystanders) Close proximity to the accident Shock suffered by claimant should from sight or hearing of the event on its immediate aftermath. Alcock v. Chief Constable of South Yorkshire (Football stadium) Facts: Disaster in the football stadium killed 96 people broadcasted live. → Negligence of police. Decision: A person elsewhere in the stadium losing 2 brothers - No sharing of love and affection Two plaintiffs lost their son - Watching in television not equal to presence at the accident or immediate aftermath. A person suffering mental injury in mortuary at night - Tragedy not being the actual cause. Trespass to Goods & Conversion 2 Conversion: Act of willful interference without lawful justification with any chattle in a manner inconsistent with the right of another whereby that owner is deprived of the use and possession of it. Intentional commission of the act. Unjustifiable denial of rights of another or assertion of rights inconsistent with the rights of another. “A person who treats goods as if they were his when they are not, is liable to be sued in conversion. Conversion by taking: Anyone who is without authority takes possession of another man’s goods with the intention of asserting dominion over them is guilty of conversion. A mere taking unaccompanied by an intention to exercise permanent or temporary dominion maybe a trespass but not conversion. M’Combie v. Hatton: Refusal to deliver property taken from agent. If principles ratifies the purchase by his agent of a chattel which the vendor had no right to sell, he is guilty of conversion although at the time of the ratification he had no knowledge that the sale was unlawful. Conversion by Parting with goods: If a man entrusted with the goods of another, put them into the hands of a third person contrary to orders, it is a conversion. It is a conversion if a person, without lawful justification deprives a person of the possession of his goods. The giver and the receiver will be joint tort feasors. Conversion by Sale: Any person however innocently obtains possession of the goods of a person who has been fraudulently deprived of them, disposes of them whether for his own benefit or that of any person, is guilty of conversion. A mere bargain and sale without delivery is not conversion. Trespass to Goods & Conversion 3 Conversion by keeping: Refusal to deliver the goods to the owner amounts to conversion. Conversion by denial of right: Interference with a chattel in a manner inconsistent with the right of the owner accompanied by a denial of title of the owner amounts to conversion. Defences: Lien: Demand and refusal are not evidence of conversion where the party has a lien upon the chattel. Right of stoppage in transit: Denial of plaintiff’s right to property Distress Sale in market overt Trespass to Land - Trespass quare clausum freight 1 Trespass to Land - Trespass quare clausum freight Date Type Reading notes Possession: The possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involves both mental element (animus) and physical element (corpus) Possession in fact and law: In fact/ de facto possession/ detention: Any power to use and exclude others if accompanied by amicus possidendi provided that no one else has the equal or greater power/amicus possidendi. Actual physical contact is not necessary. → The test is whether the person has power to exclude others from the possession of that land. Legal or constructive possession: Manifest intent not merely to exclude the world at large from interfering with the thing in question but to do so on one’s own account and in one’s own name. A servant’s possession is possession in fact while that of the master is possession in law. → The difference lies in the mental state of the possessor → amicus possidendi. → The servant’s intention to exclude other is not on his behalf but on the behalf of his master. Except as against his master, he has the necessary amicus possidendi to exclude others from interfering with the possession of the article. Right to possess and Right of possession: Only those persons who have the right of possession can sue for trespass and not who has the right to possess. A bailor has the right to possess and the bailee has the right of possession. Similarly, the landlord who has let his land on lease for a period has the right to possess at the expiry of that period and the tenant has the right of possession. @October 18, 2023 Trespass to Land - Trespass quare clausum freight 4 remove the obstruction that amounts to trespass. Continuing trespass: Trespass without ever ceasing. Every continuance of a trespass is a fresh trespass. Holmes v. Wilson: One who built on the plaintiff’s land some butresses to support a road and paid damages in an action for trespass was held liable in damages in a second action for not removing the butresses after notice. Defenses to trespass: License is a ground for justification: License: A consent which without passing any interest in the property merely prevents the acts for which consent is given from being harmful. Licenses are rights in personam whereas easement (a right to use someone else’s land for a specified purpose) is right in rem. A license can be revoked at any moment by notice to the licensee provided that he has given a reasonable time to remove himself and his goods placed on the land in pursuance of the license. A license is revocable unless it is executed or coupled with interest. Executed license and license coupled with interest: Executed: A license is executed when something is done by the licensee in pursuance of the license granted to him. In cases where an illegal act has been done by the defendant and tolerated for some time by the plaintiff, it will not make an act an irrevocable executed one → Canadian Pacific Railway v. R. License coupled with Interest or Grant: This is irrevocable. Interest signifies a right in rem over property acquired in pursuance of the license. Trespass to Land - Trespass quare clausum freight 5 Eg: A person having a license to sell soda bottles in a theatre, the license will be irrevocable for the purpose of taking back the empty bottles. Justification by law, private defense, necessity, parental authority etc. These are recognized lawful defenses. By law: Policemen can enter a private premise if he has reasonable grounds to believe that there is some disturbance but he cannot enter merely to put some property there in a safer place or to prevent some felony committed with regards to the property. The right of Distress damage feasant can be exercised only by an occupier of the premise on his land. Trespass ab initio: If one who is entitled by a law to do an act abuses his authority to do it, he is said to be trespasser ab initio. His act is considered unlawful from the very beginning however innocent his conduct may have been up to the moment of his abuse. The abuse must be a positive one and not mere omission → Six Carpenters’ case: Six carpenters entered an inn, called for bread and wine, consumed both and refused to pay. This was not held as trespass since not doing is not trespass. A lawful entry is not abuse unless the abuse takes away the entire reason for the entry. If there remains an independent reason for the entry which is unaffected by the abuse, it will suffice to justify the entry and protect it from trespass ab initio. Elias v. Pasmore: Two police constables lawfully entered a premise to arrest 2 plaintiffs but took some documents, some rightfully and some wrongfully. It was held that they committed trespass ab initio only to the documents collected wrongfully. Remedies for Trespass: Right of Re-entry: The person entitled to possession can enter or re-enter the premises in a peaceable manner. Trespass to Land - Trespass quare clausum freight 6 Hemmings v. Stokes Poges Golf Club: A tenant of the cottage refused to quit after a proper notice was given. The defendants went in and removed the plaintiff with no more than required force. The defendants were not held liable. Action of Recovery of Land or Ejectment: The claim of a person for possession on the basis of possessory title against the wrongdoer can succeed on the strength of his own title and not on the weakness of the defendant’s title. Jus Tertii (Title of 3rd person): The defendant can take the defense of Jus Tertii if the title of the land is with a 3rd party. A lessee cannot dispute the title of his lessor. Action of Mesne Profits: Mesne profits are the profits taken by the defendant during the period of his occupancy. The plaintiff can claim by way of damages the mesne profits of the property for the period he was out of possession. Gregory v. Piper: Trespass by a man’s cattle is equivalent to trespass by himself. Smith v. Stone: The defendant was brought into plaintiff’s land by force. An involuntary act is not trespass. Minister of Health v. Belloti: If a licensee is staying on the land after the expiration of license, it is trespass. Robert v. Hallet: Once a license is revoked, a person must be given reasonable time to leave and take the goods back. Tresspass to Person 1 Tresspass to Person Date Type Reading notes Introduction: Principle: Direct invasion of a protected interest from a positive act is an actioanble subject to justification. If the invasion was indirect through omission or foreseeable → No action can be taken. Not liable → If the invasasion was untended if the conduct was reasonable or even if unreasonable if the invasion was an unforeseeable consequence. Fowler v. Lanning → It must be proved by the plaintiff that the defendent had the intention to harm the plaintiff and has to prove the negligence of the defendent. (In this case, the plaintiff claimed that the defendent shot the paintiff ) Letang v. Cooper → The plaintiff claimed that while she was sun bathing, a car ran over her injuring her legs by the negligent driving of the defendent. The court held that if the act was not intended, then it is not trespass and negligent driving can only be claimed under neglugence. Intended invasasions - Trespass 1) The defendent has to provide justification 2) The damage is not an essential element and need not be proved by the plaintiff. Unintended invasaions - Negligence Assault and Battery: Assault: @September 19, 2023 Tresspass to Person 2 Attempt or a threat to hurt another. Ability to do the act (Means of carrying the threat into effect) Intention to the act Actual contact is battery and not assault. Assault: Any gesture that causes an apprehension on the mind of the party that the other party is about to use a criminal force on the person threatened coupled with the present ability to execute the intention. → Intention + Act. Battery: Intentional and direct application of any physical force to the person of another. Cole of Turner: It was held that the least touching of one in anger is battery. Battery includes assault. (To throw water intentionally on a person is assault. If the drops fall upon the person, then it is battery) Stephens v. Myers: (Chairperson case) Facts: The plaintiff was a chairperson of a meeting. The defendent was expelled from the meeting through a motion. The defendent said that instead of going out, he would pull the chairperson out of the chair and started advancing towards him but stopped by the warden before reaching the chairperson. Held: Though the defendent was 2-3 steps away from the plaintiff, the defendent had the intention to do the act and he was advancing towards him where he would have done the act if he had not been stopped. This constitutes assault because he had the means to carry the threat into effect though he was 2-3 steps away. Read v. Coker: (Goons case) Facts: The defendent told the plaintiff to leave the premise occupied by the plaintiff and when the plaintiff refused, the defendent came with his workmen who rounded the plaintiff and tucked up their sleeves and told that they would break his neck if he did not leave. The plaintiff left the premise. Held: There is an assault as apprehension of fear was constituted and the defendent had the intention and means and present ability to carry out the act of harming the defendent. Tresspass to Person 3 Bavisetti Surya Rao v. Nandipatti Muttaya: Facts: The defendent (Village munsiff) thretened to seize the ear-rings of the plaintiff if the land revenue was not paid. The gold smith was called to check the value and remove the ear- ring and someone paid the revenue on behalf of the plaintiff. Held: It is not an assault as the defendent did not say anything after the arrival of the gold smith and the plaintiff was not put in any immediate danger or violence. A civil and criminal action can be taken for an assault. The fact that the criminal proceedings have been taken does not stop the plaintiff from claiming for damages under a civil suit. False Imprisonment: Total restraint of the liberty of a person without legal excuse. Two constitute false imprisonment: Total restraint of the person Detention must be unlawful Merring v. Graham White Aviation: (Fakse imprisonment without knowing it) Facts: The plaintiff was suspected of stealing varnish from the defendent’s aviation company where he was employed. Two work policemen asked him to go to the director’s office. The 3 of them went there. In the waiting room, he was waiting where the policemen were also there. The plaintiff sued the defendent for false imprisonment as soon as he came under the influence of those work policemen. Held: It was held as false imprisonment. A person can be under false imprisonment without knowing it. Lord Atkin held that a person can be under false imprisonment while asleep, unconscious or lunatic, though the imprisonment began and ceased in that state. Murray v. Minister of Defence: False imprisonment is actionable without proof of special damage. So, it is not necessary for a person unlawfully detained to prove that he knew that he was being detained or that he was harmed by detention. A person who has been unaware that he has been imprisoned and who has suffered no harm can recover nominal damage only. Nuisance 1 Nuisance Date Type Lecture notes Nuisance: Public IPC states remedy for public nuisance Private CPC → Court will provide injunction Elements: Interference to land If the land belongs to that person Damages Interference to enjoyment of land Case names: Thomson Schwarb v. Costaki: Costaki was involved in prostitution. The prostitution would be done in a house. The appelants filed for nuisance. The court said that there was nuisance. The court observed that the street would have a bad name if this continues and the residents would have problems. The court said that the activity would disturb the peace of the residents of the street. Hunter v. Canary Whorf: @October 3, 2023 Nuisance 1 Nuisance Date Type Reading notes Nuisance: Anything which causes hurt or annoyance not amounting to a trespass → From French word ‘nuire’ which means to hurt. It is not negligence. → Reasonable care taken would not be a defence. Immunity will be provided if the act was statutory obligation. Two kinds - Public and Private 1. Public or Common Nuisance: Any act or illegal omission which causes common injury or annoyance to the public or to the people in general who are in vicinity or annoyance to persons who may have any public right. It can only be the subject of one action. → Otherwise, a party maybe ruined by a million of suits. People have a private right of action in a public nuisance if (The subject of the rule is to avoid multiplicity of cases) he shows that he has suffered a particular injury to himself beyond that which is suffered by the rest. Such injurty should be direct and of substantial and not just a speculation. The defendent must be presumed to have knowledge of the existence of nuisance ie he had failed to take reasonable steps and bring it to an end. CPC provides for injunction by the court. Remedy can be indictment (formal charge) @October 4, 2023 Nuisance 2 Certain decisions of courts: If the defendent is doing anything unecessary or unreasonable and if that act caused nausance to public, he won’t be liable. 2. Private Nuisance: The act or illegal omission causing injury to a person. That injury can be regarding health, property, comfort and convenience. Essentials of nuisance: Unlawful act Damage - actual or presumed 3 kinds of private nuisance: - (Essence: Intereference with land or enjoyment of land) Enroachment of neighbour’s land - (Measure of damage is diminution of value of land) Direct injury to neighbour’s land - (Measure of damage same as above) Injury to the enjoyment of neighbour’s land (escape of smoke) - (Measure of damage is the loss of amenity value) - Only the owner of the land can sue. → If the person suffered damage by inhaling the smoke, he can sue for negligence but not nuisance. Acts of private nuisance basically includes: Wrongful disturbances of easement or servitude. → Obstruction to light/air Wrongful escape of deleterious substances → Smell, fumes, gas etc. Reasonableness play an important rule in determining nuisance. As private nuisance affects a few individuals, it cannot be made the subject of indictment but maybe on the grounds of civil action for damages or an injuction or both. In an action for nuisance, the defence cannot be that the plaintiff himself came to the nuisance or the act of nuisance is beneficial to the public or the defendent is merely making the reasonable use of his property. Strict Liability & Absolute liability 1 Strict Liability & Absolute liability Date Type Reading notes Rationale of Strict Liability: The undertakers of the activities have to compensate for the damage caused irrespective of any carelessness on their part. The basis of liability is the foreseeable risk inherent in the very nature of the activities. Unlike negligence, the defendant could be held liable irrespective of whether he could have avoided the particular harm by taking precautions. For liability in strict liability, the damage caused must be foreseeable. → Cambridge Water Co. Ltd v. Eastern Countries Leather Plc (PCE, borehole case) Rule in Rylands v. Fletcher: Facts: The defendant had a mill and wanted to improve its water supply. They constructed reservoir by employing competent engineers who were independent contractors. When the reservoir was filled, water flowed down the plaintiff’s neighboring coal mine causing damage. There was some negligence on the engineer’s part and the defendant was in now way negligent as competent engineers were employed. Decision: The rule of law is that the person who, for his own purpose, brings on his land and collects and keep there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. Rickards v. Lothian: Non natural use of land → It is not every use to which land is put that brings into play this principle. It must be some special use bringing with it increased @October 20, 2023 Strict Liability & Absolute liability 2 danger to others and must not merely be the ordinary use of the land. Reads v. J. Lyons & Co: Non natural use of land should result in the escape of the thing from the land. Escape means when the defendant loses control over the thing. State of Punjab v. Modern Cultivators - Use of land for canal system is an ordinary use of land. Exceptions to the rule in Rylands v. Fletcher: Vis Major (Act of God): Direct irresistible act of nature which could not by any ability could have been foreseen and could not have been resisted. Vis Major should be the proximate cause (causa causant) and not merely a causa sine qua non. Before considering the act of god as an excuse, the defendant must have done all he was bound to do. Wrongful act of a third party: Though the act of third party can be a defense, the defendant may still be held liable if he failed in foreseeing and guarding against the consequences to his works of that third party. Plaintiff’s own default: Absolute liability: MC Mehta v. Union of India: Harm caused by escape by Oleum gas from one of the units of Shriram Foods and Fertilizer industries. Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity, the enterprise is absolutely liable to compensate all those who are affected by the accident and such liable is not subject to any exceptions as in strict liability. The enterprise cannot escape by showing that it had taken reasonable care on its part. Strict Liability & Absolute liability 3 This rule does not carry any distinction between the harm caused to persons within the premise or outside the premise. The damages in strict liability is compensatory but the damages in absolute liability can be exemplary.