Torts

tort n. French for wrong, a civil wrong, or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law), and results in more civil litigation than any other category. Some intentional torts may also be crimes such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft), and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another, either by print or broadcast (libel) or orally (slander), is a tort and used to be a crime as well. (See: negligence, damages,assault, battery, fraud, wrongful death, conversion, trespass, defamation, libel, slander)

tort noun breach of legal duty, civil wrong, dereliccion of duty, error, fault, invasion of a legal right, legal wrong,malfeasance, misdeed, misdoing, misfeasance, negligent act, personal wrong, private wrong, transgression,violation of a legal duty, wrong, wrongdoing, wrongful act Associated concepts: action founded in tort, comparative negligence, continuing tort, contributory negligence, foreeeeable consequences, intentional tort, prima facie tort, proximate cause, standard of care, strict liability in tort, successive torts, tort feasor, tortious act, tortious conduct TORT. An injury; a wrong; (q.v.) hence the expression an executor de son tort, of his own wrong. Co. Lit. 158. 2. Torts may be committed with force, as trespasses, which may be an injury to the person, such as assault, battery, imprisonment; to the property in possession; or they may be committed without force. Torts of this nature are to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property,

corporeal or encorporeal, in possession or reversion: these injuries may be either by nonfeasance, malfeasance, or misfeasance.

Tort Law
A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach. The law of torts is derived from a combination of common-law principles and legislative enactments.
Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought by the government, tort actions are brought by private citizens. Remedies for tortious acts include money damages and injunctions (court orders compelling or forbidding particular conduct). Tortfeasors are subject to neither fine nor incarceration in civil court.

The word tort comes from the Latin term torquere, which means "twisted or wrong." The English Common Law recognized no separate
legal action in tort. Instead, the British legal system afforded litigants two central

avenues of redress: Trespass for direct injuries, and actions "on the case" for indirect injuries. Gradually, the common law recognized other civil actions, including Defamation, LIBEL, and slander. Most of the American colonies adopted the English common law in the eighteenth century. During the nineteenth century, the first U.S. legal treatises were published in which a portion of the common law was synthesized under the heading of torts. Over the last century, tort law has touched on nearly every aspect of life in the United States. In economic affairs, tort law provides remedies for businesses that are harmed by the unfair and deceptive trade practices of a competitor. In the workplace, tort law protects employees from the intentional or negligent infliction of emotional distress. Tort law also helps regulate the environment, providing remedies against both individuals and businesses that pollute the air, land, and water to such an extent that it amounts to a Nuisance. Sometimes tort law governs life's most intimate relations, as when individuals are held liable for knowingly transmitting communicable diseases to their sexual partners. When a loved one is killed by a tortious act, surviving family members may bring a Wrongful Death action to recover pecuniary loss. Tort law also governs a wide array of behavior in less intimate settings, including the operation of motor vehicles on public roadways. The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the culpable action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been compromised, diminished, or emasculated. In theory these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, Negligence, and ultrahazardous activities. Intentional Torts An intentional tort is any deliberate interference with a legally recognized interest, such as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and freedom from confinement or deception. These interests are violated by the intentional torts of assault, Battery, trespass, False Imprisonment, invasion of privacy, conversion, Misrepresentation, and Fraud. The intent element of these torts is satisfied when the tortfeasor acts with the desire to bring about harmful consequences and is substantially certain that such consequences will follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not rise to the level of an intentional tort. Under certain circumstances the law permits individuals to intentionally pursue a course of conduct that will necessarily result in harm to others. The harm that results from such conduct is said to be outweighed by more important interests.

Self-preservation is one such interest and is embodied in the right of Self-Defense. Individuals may exert sufficient force in self-defense Breast Implant Lawsuits When a company produces a dangerous or defective product that injures an individual, the injured person may sue the company in a products-liability tort action, demanding compensation for the injuries. To prevail in a products-liability action, the plaintiff must demonstrate that the injury-causing product was defective, that the defect existed at the time the product left the control of the defendant, and that such defect was the proximate cause of the plaintiff's injury. If many individuals have been injured by the same product, the court may permit the filing of aClass Action lawsuit, in which a small number of plaintiffs represent the entire group of injured victims. One of the more controversial class actions involved the silicone breast-implant litigation. Notwithstanding a class totaling more than 400,000 plaintiffs, a settlement that offered more than $3 billion in compensation for their alleged injuries, and a federal government ban on the product, no evidence was ever provided that conclusively linked silicone breast implants with any form of serious disease. In fact, following the settlement at least two scientific studies affirmatively concluded that no such link exists. In the wake of those studies, manufacturers have sought government approval to resume selling silicone breast implants to the public. In 1962 Dow Corning became the first company to manufacture and market silicone breast implants. The implants consisted of a rubbery silicone envelope containing silicone gel. Plastic surgeons soon discovered that a certain (and as yet undetermined) percentage of implants rupture on their own, either because of trauma to the breast or because the implant simply tears. In many cases, the gel stays either in the implants or in the immediate vicinity. In rare cases, the gel may migrate through the body. Moreover, the implants themselves are permeable, and minute amounts of silicone gel can seep through the implants and remain in nearby tissue or migrate throughout the body. For many years, breast implants were essentially unregulated by the government. The Food and Drug Administration (FDA) did not have jurisdiction over medical devices, including breast implants, until the 1976 Medical Devices Amendment to the Food, Drug and Cosmetic Act (MDA) became law. The MDA "grandfathered-in" existing devices, such as breast implants, allowing them to remain on the market until the FDA could classify and regulate them. In 1982 the FDA proposed classifying silicone-gel breast implants as Class III devices, the most stringently regulated category. The FDA expressed concern about the scar tissue that forms around the implant, about potential long-term toxic effects of silicone that might leak from the implants, and about possible health effects from the silicone polymers from which the implant shells were made.

That same year Maria Stern filed the first silicone-breast-implant-related Product Liability suit against Dow Corning, Inc., after her implants ruptured. Testifying before a jury sitting in the U.S. District Court for the Northern District of California, Stern said that she suffered from chronic fatigue and joint pains before and after the implants were removed. Although her doctors speculated that Stern's problems had been caused by the silicone migrating throughout her body, they offered no valid scientific proof of causation. However, Stern did demonstrate that the company had acted irresponsibly by failing to conduct any research into the possible ill effects of silicone on the human body despite evidence that Dow Corning knew that implants could leak and rupture. A jury found for the plaintiff and awarded Stern $200,000 in damages. The jury also awarded her $1.2 million in Punitive Damages. After the trial judge upheld the awards, the case was settled before appeal for an undisclosed sum, and the record was sealed. The media did not immediately pick up on the Stern settlement or the smattering of similar lawsuits that were pending in state and federal courts around the country. After several relatively uneventful years following a series FDA hearings in the late 1980s, however, NBC aired an episode of Face to Face with Connie Chung which focused on the dangers of breast implants. The December 1990 show frightened and outraged thousands of implant recipients. Chung referred to silicone gel as "an ooze of slimy gelatin that could be poisoning women." She interviewed several women who blamed implants for causing their auto-immune diseases, but Chung never questioned the presumed link. Chung concluded the segment by showing viewers pictures of Sybil Goldrich, whose chest had been disfigured by operations to remove her implants. On July 9, 1991, a deadline expired for implant manufacturers to prove the safety of their product to the FDA, and no manufacturer offered any convincing proof on the matter. A year later the FDA ordered that silicone breast implants be removed from the market. Thereafter, the number of breast-implant lawsuits filed against manufacturers rose dramatically. By 1992 plaintiffs had filed 3,558 individual lawsuits against Dow Corning alone. In June 1992, the federal Judicial Panel on Multidistrict Litigation certified a multi-district class-action lawsuit against the major implant manufacturers, including Dow Corning, Bristol-Myers Squibb, Baxter International, and Minnesota Mining & Manufacturing Co. In September 1993 the parties tentatively agreed to settle the class-action products liability lawsuit for $4.75 billion. But settlement ultimately collapsed after 440,000 women registered for the settlement, forcing Dow Corning, the largest contributor to the settlement, to file for Bankruptcy in 1995. On November 30, 1998, U.S. Bankruptcy Judge Arthur Spector approved Dow Corning's $4.5 billion plan to emerge from bankruptcy, which included $3.2 billion to settle implant claims with more than 170,000 women. Eventually, the other implant manufacturers entered similar settlement agreements with most of the remaining plaintiffs. More than 90 percent of the eligible class-action plaintiffs accepted the defendants' settlement offers.

The remaining plaintiffs opted-out of the class settlement, which allowed them to sue the defendants individually. A little more than a year after the class action was settled, a scientific panel appointed by the court overseeing the settlement released the results of its breastimplant study, finding that there was no sufficient scientific basis to link silicone implants to cancer, connective tissue diseases, immune system dysfunctions, or any other disease. On June 21, 1999, the Institute of Medicine of the National Academy of Sciences issued a congressionally funded report that reached the same conclusion. In March of 2003 two California-based companies announced their desire to reintroduce silicone breast implants into the stream of commerce, and the FDA agreed to hold safety hearings and reconsider its ban on the product. The potential return of silicone gel-filled implants came at a time when more women were looking to increase their breast size: the American Society of Plastic Surgeons reported more than 206,300 breast augmentations in 2001, up from about 32,600 in 1992. Further readings Angell, Marcia. 1997. Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case. New York: W. W. Norton. Crane, Misti. 2003. "FDA Might Reconsider 10-Year Silicone Ban." Columbus Dispatch (March 16). Stewart, Mary White. 1998. Silicone Spills: Breast Implants on Trial. Westport, Conn.: Praeger. Cross-references Class Action. to repel an imminent threat of bodily harm. Deadly Force may only be used by persons who reasonably believe that their lives are endangered and for whom there are no reasonable means of escape. Reasonable force, but not deadly force, may be employed in defense of property. Consent is a defense to virtually every intentional tort. The law will not compensate persons who knowingly allow someone to injure them. However, consent must be given freely and voluntarily to be effective. Consent induced by coercion, duress, Undue Influence, or chicanery is not legally effective. Nor is consent legally effective when given by an incompetent person. Consent to intentional torts involving grievous bodily harm is also deemed ineffective in a number of jurisdictions. Negligence Most injuries that result from tortious behavior are the product of negligence, not intentional wrongdoing. Negligence is the term used by tort law to characterize behavior that creates unreasonable risks of harm to persons and property. A person acts negligently when his behavior departs from the conduct ordinarily expected of a

reasonably prudent person under the circumstances. In general, the law requires jurors to use their common sense and life experience in determining the proper degree of care and vigilance with which people must lead their lives to avoid imperiling the safety of others. Not every accident producing injury gives rise to liability for negligence. Some accidents cannot be avoided even with the exercise of reasonable care. An accident that results from a defendant's sudden and unexpected physical ailment, such as a seizure or a blackout, generally relieves the defendant of liability for harm caused during his period of unconsciousness. However, defendants who have reason to know of such medical problems are expected to take reasonable precautions against the risks the problems create. In some jurisdictions unavoidable accidents are called ACTS OF GOD. Assumption of Risk is another defense to negligence actions. This defense prevents plaintiffs from recovering for injuries sustained as a result of a relationship or transaction they entered with full knowledge and acceptance of the risks commonly associated with such undertakings. Assumed risks include most of those encountered by spectators attending sporting events. However, the law will not assume that individuals accept the risk of intentionally inflicted harm or damage, such as injuries resulting from Assault and Battery. Strict Liability In some cases tort law imposes liability on defendants who are neither negligent nor guilty of intentional wrongdoing. Known as Strict Liability, or liability without fault, this branch of torts seeks to regulate those activities that are useful and necessary but that create abnormally dangerous risks to society. These activities include blasting, transporting hazardous materials, storing dangerous substances, and keeping certain wild animals in captivity. A distinction is sometimes drawn between moral fault and legal fault. Persons who negligently or intentionally cause injury to others are often considered morally blameworthy for having failed to live up to a minimal threshold of human conduct. On the other hand, legal fault is more of an artificial standard of conduct that is created by government for the protection of society. Persons who engage in ultrahazardous activities may be morally blameless because no amount of care or diligence can make their activities safe for society. However, such persons will nonetheless be held legally responsible for harm that results from their activities as a means of shifting the costs of injury from potential victims to tortfeasors. As a matter of social policy, then, individuals and entities that engage in abnormally dangerous activities for profit must be willing to ensure the safety of others as a price of doing business. Consumers who have been injured by defectively manufactured products also rely on strict liability. Under the doctrine of strict Product Liability, a manufacturer must

guarantee that its goods are suitable for their intended use when they are placed on the market for public consumption. The law of torts will hold manufacturers strictly liable for any injuries that result from placing unreasonably dangerous products into the stream of commerce, without regard to the amount of care exercised in preparing the product for sale and distribution and without regard to whether the consumer purchased the product from, or entered into a contractual relationship with, the manufacturer. Causation Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. Causation has two prongs. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. In its simplest form, cause in fact is established by evidence that shows that a tortfeasor's act or omission was a necessary antecedent to the plaintiff's injury. Courts analyze this issue by determining whether the plaintiff's injury would have occurred "but for" the defendant's conduct. If an injury would have occurred independent of the defendant's conduct, cause in fact has not been established, and no tort has been committed. When multiple factors have led to a particular injury, the plaintiff must demonstrate that the tortfeasor's action played a substantial role in causing the injury. Second, plaintiffs must establish that a particular tort was the proximate cause of an injury before liability will be imposed. The term proximate cause is somewhat misleading because it has little to do with proximity or causation. Proximate cause limits the scope of liability to those injuries that bear some reasonable relationship to the risk created by the defendant. Proximate cause is evaluated in terms of foresee-ability. If the defendant should have foreseen the tortious injury, he or she will be held liable for the resulting loss. If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed. When duty, breach, and proximate cause have been established in a tort action, the plaintiff may recover damages for the pecuniary losses sustained. The measure of damages is determined by the nature of the tort committed and the type of injury suffered. Damages for tortious acts generally fall into one of four categories: damages for injury to person, damages for injury to Personal Property, damages for injury to real property, andPunitive Damages. Damages Personal injury tort victims must normally recover all their damagespast, present, and futureduring a single lawsuit. Damages may be recovered for physical, psychological, and emotional injury. Specifically, these injuries may include permanent disability, pain and suffering, disfigurement, humiliation, embarrassment, distress,

impairment of earning capacity, lost wages or profits, medical costs, and out-ofpocket expenses. Courts typically rely on Expert Testimony to translate such losses into dollar figures. Plaintiffs suffering damage to personal property must elect between two methods of recovery. First, plaintiffs may elect to recover the difference between the value of the property before the tort and the value of the property after it. Second, plaintiffs may elect to recover the reasonable costs of repair for damaged personal property. However, if the property is destroyed, irreparable, or economically infeasible to repair, damages are measured by the replacement value of the property. Persons who are temporarily deprived of personalty may sue to recover the rental value of the property for the period of deprivation. Damages for injury to real property may be measured by the difference in the realty's value before and after the tort. Alternatively, plaintiffs may elect to recover the reasonable costs of restoring the property to its original condition. In either case plaintiffs may also recover the rental value of their property if its use and enjoyment has been interrupted by tortious behavior. Mental, emotional, and physical harm that is sustained in the process of a tortious injury to real property is compensable as well. Punitive damages, called exemplary damages in some jurisdictions, are recoverable against tortfeasors whose injurious conduct is sufficiently egregious. Although punitive damages are typically awarded for injuries suffered from intentional torts, they can also be awarded against tortfeasors who act with reckless indifference to the safety of others. Because one purpose of punitive damages is to punish the defendant, plaintiffs may introduce evidence regarding a tortfeasor's wealth to allow the jury to better assess the amount of damages necessary for punishment. Such evidence is normally deemed irrelevant or prejudicial in almost every other type of damage claim. In addition to damages for past tortious conduct, plaintiffs may seek injunctive relief to prevent future harm. Manufacturing plants that billow smoke that pollutes the air, companies that discharge chemicals that poison the water, and factories that store chemicals that migrate through the soil create risks of injury that are likely to recur over time. In tort law, operations that produce recurring injuries like these are called nuisances. If the harmfulness of such operations outweighs their usefulness, plaintiffs may successfully obtain a court order enjoining or restraining them. Immunity Certain individuals and entities are granted Immunity from both damage awards and assessments of liability in tort. An immunity is a defense to a legal action where public policy demands special protection for an entity or a class of persons participating in a particular field or activity. Historically, immunity from tort

litigation has been granted to government units, public officials, charities, educational institutions, spouses, parents, and children. Government immunity, also known as Sovereign Immunity, insulates federal, state, and local governments from liability for torts that an employee commits within the scope of his or her official duties. Public policy, as reflected by legislation, common-law precedent, and popular opinion, has required courts to protect the government from unnecessary disruptions that invariably result from civil litigation. Similarly, educational institutions generally have been immunized from tort actions to protect students and faculty from distraction. In a number of states, tortfeasors have been given immunity from liability if they are related to the victim as husband or wife, or parent or child. These states concluded that family harmony should not be traumatized by the adversarial nature of tort litigation. Charities and other philanthropic organizations have been given qualified immunity from tort liability as well. This immunity is based on the fear that donors would stop giving money to charities if the funds were used to pay tort claims. Over the last quarter century, nearly every jurisdiction has curtailed tort immunity in some fashion. Several jurisdictions have abolished tort immunity for entire groups and entities. The movement to restrict tort immunity has been based in part on the Rule of Law, which requires all persons, organizations, and government officials to be treated equally under the law. Despite the efforts of this movement, tort immunity persists in various forms at the federal, state, and local levels. Tort Reform Initiatives The damages recovered by those injured as a result of a tortious act of another are often paid for by insurance companies. This is particularly true in Medical Malpractice cases. Doctors must pay significant medical liability insurance premiums in order to stay in business. When a doctor commits Malpractice, the patient may receive an award of hundreds of thousands of dollars to millions of dollars. As insurance companies continue to pay these hefty awards, the rates for insurance premiums often rise sharply. The medical profession and medical liability insurance companies have engaged in a nationwide campaign to place limitations on the amount of damages that a patient who has been subject to medical malpractice can recover. Under the guise of "tort reform," supporters advocate placing limitations on the recovery of noneconomic damages, including pain and suffering and loss of consortium. In 1975, California enacted the Medical Injury Compensation Reform Act, which limits recovery of noneconomic damages at $250,000 and restricts the amount of fees that may be recovered by lawyers. California's law has served as a model for six other states that have adopted similar tort-reform bills. Other state legislatures have considered similar tort-reform initiatives.

President GEORGE W. BUSH has advocated federal legislation that would place a $250,000 cap on noneconomic damages at the national level. According to Bush, the federal government spends $28 billion per year on medical liability insurance costs and defensive medical costs. Opponents of such a measure claim that many of the problems associated with insurance costs are the result of poor business practices by insurance companies. Opponents also maintain that capping damages for pain and suffering restricts the ability of patients to recover only an Arbitrary amount from a negligent doctor. Supporters of the initiative claim that capping damages will lower medical costs to the general population.
Law on Torts (part-1)

Law on Tort Definition of Tort-

Tort derived from the Latin word tortum, which means to twist. It includes that conduct which is not straight or lawful. It is equivalent to the English term wrong. Salmond- It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation. We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere branch of contract or breach of trust. Distinction between Tort and crimeTort Crime i) Less serious wrongs are considered as i) More serious wrongs have been considered private wrongs and have been labelled as civil to be public wrongs and are known as crimes. wrong. ii) The suit is filed by the injured person ii) The case is brought by the state. himself. iii) Compromise is always possible. iii) Except in certain cases, compromise is not possible. iv) the wrongdoers pays compensation to the iv) The wrongdoer is punished. injured party. Distinction between Tort and breach of contractBreach of contract Tort i) It results from breach of a duty undertaken i) It occurs from the breach of such duties by the parties themselves. which are not undertaken by the parties but which are imposed by law. ii) In contract, each party owes duty to the ii) Duties imposed by law of torts are not other. towards any specific individual but towards the

iii) Damage of contract is liquidated. iv) It provides limited remedy

world at large. iii) Damage of tort is unliquidated. iv) It provides unlimited remedy.

Distinction between Tort and Breach of trustTort i) Damage of tort is unliquidated. ii) Law of tort was part of common law. iii) Tort is partly related to the law of property. Latin terms and maximsBreach of Trust i) Damage of breach of trust is liquidated. ii) Law of trust was part of Court of Chancery. iii) Trust is a branch of law of property.

Causa causans- An immediate and effective cause. Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event would not have occurred. Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative. East India Commercial Co. v. Collector of Customs, AIR 1962Municipal Board v. State Transport Authority, AIR, 1965Prem Bus Service v. R.T.A, AIR 1968Chockalingam v. C.I.T, AIR, 1963Inayatullah v. Custodian, Evacuee Property, AIR, 1958-

Volenti non fit injuria- There is no injury to one who consents. Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable. Padmavati v. Dugganaika- 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 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.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses course and there he was seriously injured by the galloping horse. The horse in question won the competition. It was held that since the defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty of skill. Ex turpi causa non oritur actio No action arises from a wrongful consideration. Hardy v. Motor Insurers Bureau- This was a case where a security officer was dragged along when he tried to stop a car. Lord Denning MR said: no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim. Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim. Damnum sine injuria Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it. Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits. Ushaben v. Bhagyalaxmi Chitra Mandir The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named Jai Santoshi Maa. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong.

Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected. Action v. Blundell The defendants by digging a coal pit intercepted the water which affected the plaintiffs well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbours well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action. Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon anothers land is actionable even though it has done the plaintiff not the slightest harm. Ashby v. White Bhim Singh v. State of J & K The petitioner, an MLA, of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within the requisite period. As a consequence of this, the member wad deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right guaranteed under the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to 50,000 were awarded to him. More Terminologies

Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse. In its legal sense it means a wrongful act done intentionally without just cause or excuse. Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types: i) Malice in fact ii) Malice in law Malice in fact Means an actual malicious intention on the part of the person who has done the wrongful act. It is also called express or actual malice. Malice in law It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.

Motive Motive is that which incites or stimulates a person to do an act. It is the moving power which impels to action for a definite result. Motive is mainspring of human action. It is cause or reason. It is something which prompts a man to form an intention. Intention A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or which it wishes to express or achieve; the willingness to bring about something planned or foreseen. Injury- In legal parlance, injury means any wrong or damage done to another, either in his person, rights, reputation or property. Meaning under Penal Code, 1860 (section 44) the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Malfeasance it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to do. The word malfeasance would apply to a case where an act prohibited by law is done by a person. (Khairul Bahsar v. Thana Lal AIR 1957) Misfeasance Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful authority; official misconduct; breach of law. The word misfeasance would apply to a case where a lawful act is done in an improper manner. Nonfeasance - Non performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty. Nonfeasance would apply to a case where a person omits to do some act prescribed by law. Distinction between Misfeasance, nonfeasance and malfeasance Misfeasance is the improper doing of an act which a person may wilfully do. Nonfeasance means the omission of an act which a person ought to do. Malfeasance is the doing of an act which a person ought not to do at all.

Remedies

Remedies are of two types- (i) judicial and (ii) extra-judicial. Judicial remedy is of three types: (i) Damages, (ii) Injunction and (iii) Restitution of property

Types of damages a) Exemplary or Vindictive damages are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice etc. Ordinary or Real damages are compensation for general damage. General damages are those which the law implies in every breach of contract and in every violation of a legal right. Nominal damages They are awarded for the vindication of a right where no real loss or injury can be proved. Contemptuous damages -

b)

c) d)

Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC 1908. Types of injunction (i) Mandatory When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach (s. 55 of the Specific Relief Act, 1877). (ii) Permanent or perpetual By perpetual injunction a defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s. 53, the Specific Relief Act, 1877). (iii) Temporary Temporary injunction is such as is to continue until a specified time, or until the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1. (iv) Ad-interim Restitution of property Restitution means restoration of anything to its rightful owner. Extra-judicial remedies arei) Self defence The use of force to protect oneself, ones family, or ones property from a real or threatened attack.

ii) Expulsion of trespassers Forcibly evicting the trespasser.

iii) Reception of chattels Chattel means movable or transferable property; personal property. iv) Re-entry of land v) Abatement of nuisance Abatement is the act of eliminating or nullifying; the act of lessening or moderating.

vi) Distress damage feasant the right to seize animals or inanimate chattels that are damaging or encumbering land and to keep them as security until the owner pays compensation. Who may sue and who may be sued Every person can sue in case of tort including the minor with the consent of his guardian or the court. The following persons cannot suei) Citizen of foreign state If a citizen of foreign country wants to file a suit against a Bangladeshi or a other citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s. 83 of CPC)

ii) Alien enemy Every person residing in a foreign country the Government of which is at war with, or engaged in military operations against Bangladesh and carrying on business without a license will be regarded as an alien enemy. Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue. No alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s. 83 of CPC) iii) Foreign state A foreign state cannot sue unless it is recognized by the Government. vi) Bankrupt The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared insolvent, his properties are taken over and a receiver is appointed as the supervisor of that property. A bankrupt cannot sue as long as civil wrongs are concerned. v) Felons/Convicts Felon is a person who has been proven guilty and declared with punishment but fled away. Convict is a person who has been proven guilty but has not fled away. A felon cannot file a suit. But a convict can file a suit. vi) Corporation A corporation gets a legal entity when it is registered. No unregistered corporation can file a suit. vii) Child in mothers womb This is called pre-natal injuries. Walker v. G.N. Ry. Co. of Ireland the plaintiff, a child, sued the railway company for damages on the ground that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident due to railways negligence, when the plaintiffs pregnant mother travelled on the defendants railway. It was held that the defendants were not liable for two reasons. Firstly, the defendants did not owe any duty

to the plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiffs claim was very uncertain. Montreal Tramways v. Leveille The Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the negligence of the defendants. Majority of the writers are in favour of the view that an action for pre-natal injuries should also be recognized, once that the act of the defendant is considered to be tortious. Who may not be sued i) President/head of the state According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit can be filed against the President as long he is holding the post of the President.

ii) Foreign sovereign No suit can be filed against a foreign sovereign unless a consent to the same is obtained from that sovereign (s. 86 & 87). iii) Ambassador / High Commissioners High Commission is an embassy from one commonwealth country to another. iv) Public servants The list of the public servants are given in s. 21, 13 & 14 of the Penal Code, 1860. Also who are appointed through PSC are to be regarded as public servants. An application for consent from the Government is required before filing a suit against them. v) Corporation Unless it is a registered corporation, a suit cannot be filed against it.

vi) Infant / Minor According to the Penal Code, a minor is a child of 9 12 years. But age of the minor varies in various Statues. vii) Unsound mind There are various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912. Negligence

Essentials of negligencei) The defendant owes a duty of care to the plaintiff; ii) The defendant made a breach of that duty; and iii) The plaintiff suffered damage as a consequence thereof. i) The defendant owes a duty of care to the plaintiff It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists.

Donoghue v. Stevenson A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty. Palsgraaf v. Long Island Railroad Co. The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said, the conduct of the defendants servant was not wrong. Relatively to her it was not negligence at all. Duty depends on reasonable foreseeability of injury If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. No liability when injury is not foreseeable Glasgow Corp. v. Muir The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event. Reasonable foreseeability does not mean remote possibility Bolton v. Stone A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence. Duty of care Booker v. Wenborn (1962) - The defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform. ii) Breach of duty Breach of duty means non-observance of due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered. (a) The importance of the object to be attained

K. Nagireddi v. Government of Andhra Pradesh Due to construction of a canal by the state government, all the trees of the plaintiffs orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government. (b) The magnitude of risk Kerala State Electricity Board v. Suresh Kumar A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty. (c) The amount of consideration for which services, etc. are offered Klaus Mittelbachert v. East India Hotels Ltd. the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available. iii) The plaintiff suffered damage It is also necessary that the defendants breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendants negligence. Res ipsa loquitur- It means the things itself speaks. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. Hambrook v. Stokes Bors. Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable. Dickson v. Reuter

Contributory negligence When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm. Rural Transport Service v. Bezlum Bibi (1980) The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory

negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus. Yoginder Paul Chowdhury v. Durgadas (1972) The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence. Doctrine of alternative danger There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant. Jones v. Boyce (1816) The plaintiff was a passenger of defendants coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover. Shayam Sunder v. State of Rajasthan (1974) Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable. Negligence in our laws The Penal Code, 1860 s. 284 If anyone has custody of poisonous substance and fails to guard against probable danger is punishable with 6 month or 1000 taka or with both. s. 285 - If anyone acts rashly or negligently to endanger human life with fire or combustible substance is punishable with 6 month or 1000 taka or with both. s. 286 If anyone acts rashly or negligently to endanger human life with explosive substance is punishable with 6 month or 1000 taka or with both. s. 287 If anyone acts rashly or negligently to endanger human life with any machinery is punishable with 6 month or 1000 taka or with both. s. 288 If anyone in pulling down or repairing any building knowingly or negligently omits to guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or with both. s. 289 If anyone knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life or any probable danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with both.