Category: Law School

Vicarious Liability – It is a concept based on legal maxim “Respondeat superior” which means let the master answer. It is usually applied in fiduciary relationships such as employer and employee or principal and agent.  Vicarious liability is applied only if the person causing the tort is acting within the regular course of his employment. In Unites States in certain cases even parents are held vicariously liable for their children’s acts.

Keppel Bus Co v Ahmad ([1974] 2 All ER 700) – Plaintiff was a passenger who objected to a bus conductor’s treatment of another passenger and then insulting language was assaulted by the conductor. The employer was held not liable as the court held that insults to passengers are not part of the due performance of a conductor’s duty.

Bayley v Manchester, Sheffield and Lincolnshire Railway Co [(1873) LR 8 CP 148] – A porter, believing a passenger was on the wrong train, violently pulled him off, causing injury. The court held the porter acted as an employee but did so in a negligent way and hence the defendant was vicariously liable for plaintiff’s loss.

Damages – Tort law provides for several kinds of damages.  Some of them are discussed below:-

Contemptuous  Damages – Contemptuous damages are generally awarded by the court to display its disapproval at the claimant in pursuing the claim to court when they have been unreasonable in doing so.

Nominal Damages – Nominal damages are awarded where the claimant has suffered no loss but has had a right infringed.
Constantine v Imperial Hotels Ltd ([1944] KB 693) – Plaintiff was refused accommodation to without just cause. Plaintiff was awarded a small sum of five guineas in damages.

Ordinary Damages – The damages which provide for everything required are called ordinary damages.

Exemplary Damages – Exemplary damages or Punitive damages or are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit.
BMW of North America, Inc. v. Gore [134 L. Ed. 2d 809 (1996)] – Plaintiff purchased a new BMW and later learned that the car had been repainted. In a suit for suppression of a material fact, plaintiff was awarded $2 million in punitive damages. The appellate court reduced damages considerably and held that the Due Process of the Constitution limits the amount recoverable in punitive damages when the damages constitute grossly excessive punishment for a tortfeasor.

Prospective Damages – Damages which are expected to follow from the act or state of facts made the basis of a plaintiff’s suit; damages which have not yet accrued, at the time of the trial, but which, in the nature of things, must necessarily, or most probably, result from the acts or facts complained of.

Volenti non fit injuria – When the plaintiff suffers some harm with his own consent, it is a complete defence for the defendant.

Hall v. Brooklands Auto-Racing Club [1932 All ER 208] – The plaintiff, a spectator at a Car race, being conducted by the defendant was injured when a Car was accidentally thrown into the spectator’s enclosure. It was held that the plaintiff impliedly took the risk of such injury the danger being inherent in the sport, and therefore, the defendants were held not liable.

Padmavati v. Dugganaika [1975 ACJ 222] – While the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same. It was held that neither the driver nor his master could be made liable, first, because it was a case of a sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.

Private Defence – The law permits the use of reasonable force to protect one’s person or property. The use of force is justified only when there is an imminent threat and is absolutely necessary to repel the invasion. The force applied should be in preparation to threat.

Bird v. Holbrooke (130 ER 911 ) – Defendant set up a spring-gun trap in his garden in order to catch an intruder who had been stealing from his garden. Defendant did not post a warning. Plaintiff chased an escaped bird into the garden and set off the trap, suffering serious damage to his knee. The court held that one who sets traps without posting a notice is liable for any damages caused.

Ilott v. Wilkes (3 Barn. & Ald. 304) – Plaintiff was hurt by the spring gun planted on defendant’s land after having been warned by the landowner of it. The plaintiff was not awarded damages as there was a warning indicating of the possible threat.

The liability of state differs from that of individuals. A state is immune from torts committed by itself or its agents while performing sovereign functions. However, if the state was not discharging its sovereign function but discharging obligations such as welfare obligations then it will be liable for its actions. State immunity is confined to acts of state. [Secretary of State v. Hari Bhanji, (1882) ILR 5 Mad. 273]

Allen v Gulf Oil Refinery ([1981] AC 1001) – The claimant brought an action in nuisance for the smell, noise and vibration created by an oil refinery which had been constructed by the defendant on their land. The defendant’s action in constructing the oil refinery was authorised by an Act of Parliament. The defendant was not held liable as it had a defence of statutory authority.

It is based on the legal maxim “Salus populi suprema lex esto” which means the welfare of the people shall be the supreme law.  It gives the State or an individual a privilege to take or use the property of another. It is of two types, private necessity and public necessity.

Private necessity – It is the use of another’s property for private reasons.

Vincent v. Lake Erie Transportation Co. [109 Minn. 456] – Defendant was at the dock of the plaintiff to unload cargo from the steamship owned by the defendant. An unusually violent storm developed. Lake Erie was unable to leave the dock safely and deckhands for the steamship instead tied the Reynolds to the dock, continually changing ropes as they began to wear and break. A sudden fierce wind threw the ship against the dock significantly damaging the dock. The court held that a private necessity may require one to take or damage another’s property, but compensation is required.

Public necessity – It is the use of private property by a public official for a public reason.

Surocco v. Geary (58 Am Dec 385) –  San Francisco was hit by a major fire. The plaintiff, Surocco, was attempting to remove goods from his home while the fire raged nearby. The defendant and mayor of San Francisco, Geary, authorized that the plaintiff’s home be demolished to stop the progress of the fire and to prevent its spread to nearby buildings. Surocco sued the mayor claiming he could have recovered more of his possessions had his house not been blown up. The court allowed the defence of public necessity as any delay in blowing up the house to allowing plaintiff to remove more of his possessions would have made blowing up the house too late.

It is based on the legal maxim “Ignorantia facti excusat, ignorantia juris non excusat” which means ignorance of facts excuses, ignorance of the law does not excuse. It has very limited use and is not readily accepted by the courts.

R v, Tolson[(1889) 23 QBD 168] – The appellant’s husband got lost at sea after one year of her marriage. Later, believing her husband to be dead, she married another man. Appellant’s husband turned up after some time she had remarried. Appellant was then charged with the offence of bigamy. Appellant’s defence of mistake was accepted it was reasonable in the circumstances to assume that her husband was dead.

Ranson v. Kitner, [31 III. App. 241 (1888)] – Defendant shot plaintiff’s dog, reasonably believing it to be a wolf. It was held that defendant is liable and plea of mistake could only be accepted if the plaintiff has wrongfully induced the mistake.

Act of God – It is an operation of natural forces so unexpected that no human course or skill could reasonably be expected to anticipate it.

In order for an event to be classified as Act of God following criteria has been prescribed in Transco PLC v Stockport Metropolitan Borough Council ([2003] UKHL 61):

• which involve no human agency
• which is not realistically possible to guard against
• which is due directly and exclusively to natural causes and
• which could not have been prevented by any amount of foresight, plans, and care.

Nichols v Marsland [(1876) 2 ExD 1]- Defendant formed artificial lake by damming up natural system. An extra ordinary and violent thunderstorm broke down the artificial barriers and water escaped destroying the bridge. It was held that defendant is not liable due to act of God.

Inevitable Accident – It means an unexpected injury which could not have been avoided in spite of a reasonable care on the part of the defendant.

Holms v. Mather [(1875) LR 10 Ex 261] :- If the driver is not able to control the horses which are startled by a barking dog and the plaintiff is thereby injured, the defendant will not be liable.

Fardon v Harcourt-Rivington  [(1932) 48 TLR 215]- The defendant left his dog inside his parked car. The broke the glass in the rear window of the car which hit the plaintiff, resulting in the loss of one of his eyes. The House of Lords held that the chance of a passer-by being hurt by a splinter of glass was so small that a reasonable man would not guard against it, so the defence of inevitable accident was accepted.   

Contributory Negligence – It is a defence to a claim based on negligence, an action in tort. It applies to cases where plaintiffs have, through their own negligence, contributed to the harm they suffered. In certain jurisdictions of U.S. contributory negligence is a complete defence even if the plaintiff is at 1% fault.  In U.K. contributory negligence is a partial defence with damages being reduced as per the plaintiff’s contribution towards the tort. In certain jurisdictions plaintiff fault towards the tort must be less than 50% in order to get a claim.

Butterfield v. Forrester [103 Eng. Rep. 926 (K.B. 1809)] – Plaintiff was thrown off his horse and injured after he struck a pole. Defendant had put the pole across part of the road for the purpose of making some repairs to his house. Plaintiff sued Defendant for negligence. The plaintiff was not allowed damages as the court held that Plaintiff had used ordinary care, he would have seen the obstruction. Thus, no damages were provided due to contributory negligence on part of the plaintiff.

Froom v. Butcher ([1975] 3 AllER 520) – Plaintiff was driving with his wife and daughter, none of whom were wearing seatbelts. They were on the right side of the road when defendant pulled out to pass and struck them head on leading to plaintiff injuring his head and chest. The injury suffered would have been of a lesser degree had plaintiff used a seat belt. Seatbelts were not legally required at the time.  The court held that not wearing a seatbelt by the plaintiff amounts to contributory negligence even if he is not required by the law to wear them and thereby damages were reduced.