Law of Torts (part2) for law students

                                                  Law of Torts

 

    Table of Contents-  

: Nuisance

: Negligence

: Trespass

: Liability

 - Strict liability

- Vicarious liability

- Absolute liability 

 

  Nuisance

Introduction
The word Nuisance is derived from the French word 'Nuire' which means to hurt or to annoy or to cause inconvenience or damage. One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone else's improper use in his property results into an unlawful interference with his use or enjoyment of that property or of some right over, or in connection with it, we may say that tort of nuisance occurred.

In other words, Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it. Nuisance is an injury to the right of a person in possession of a property to undisturbed enjoyment of it and result from an improper use by another person in his property. 

For Examples- Acts interfering in comfort, health or safety of the person in the way of Noise, Vibration, Heat, Smoke, Smell, Fumes Water Gas, Electricity Excavation, Disease producing germs, .

Definition Of Nuisance

The Nuisance is defined in various words by many authors:

• Stephen:
  To be anything done to the hurt or annoyance of the lands, tenement or hereditaments of another, and not amounting to a trespass.
• Blackstone:
  Nuisance asxsome thing that worked hurt, inconvenience or damage.

 

Essentials Of Nuisance

• Wrongful Act (i.e. unlawful interference)
  For an act to constitute nuisance it must be prima facie wrongful or it should be an unlawful interference with a person or his property.
• Actual Damage or Loss
  Inconvenience or annoyance caused to another which the law considers as substantial or material as opposed to sensitivity or delicacy.
  It was held that hurt to religious feelings was not an actionable wrong. Moreover the plaintiff's were free not to see the movie again.     
  

  Kind of Nuisance 

- Public Nuisance

- Private Nuisance 

 

 

- Public Nuisance:
 Public Nuisance is a crime. According to Section 268 of the Indian Penal Code,  Public Nuisance is a Criminal offence. It says that A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
    Public Nuisance can only be the subject of one action, otherwise, a party might be ruined by a million suits.
    Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private right of action in respect of a public nuisance, the following must be proved -

(1) He must show a particular injury to himself beyond that which is suffered by the rest of public.

(2) Such injury must be direct and not mere consequential injury.

(3) The injury must be of suspension character.

 Relevant Case law :

Soltau v De Held, (1851) 

      In this case, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the Chapel Bell was Rang at all hours of the day and night. It was held that the ringing was a public nuisance and the plaintiff was held entitled to an injunction.   

 

Private Nuisance:   

Private Nuisance is the using or authorising the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience.

      Private nuisance in contrast to the public nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. It cannot be made the subject of an indictment, but maybe the ground of civil action for damages or an Injunction or both.

Essentials of Private Nuisance :  
Essentials of Private Nuisance are  (1) an unlawful act, and (2) damage actual or presumed. Damage actual or presumed is an essential element for an action on nuisance.


Kinds of Private Nuisance:

There are three kinds of Nuisance

(1) Nuisance by encroachment on a neighbour's land

(2) Nuisance by direct physical Injury to a neighbour's land.

(3) Nuisance by interference with a neighbour's  quiet enjoyment of his life.

Relevant Case law

  Ware Vs. Garstone  Haulage Co. Ltd. (1944)

         In this Case, A trailer attached to a lorry was kept unattended on the highway. At night time no near light was shown. A motorcyclist ran into the trailer. It was held that it was an obstruction on the highway and as such as a public nuisance.

 

  Negligence

Negligence means a careless act or omission. Negligence is a type of tort where an activity of a person has caused damaged to another person. Negligence happens when it misses the legal standard required of a reasonable person in protecting individuals against forseable  risky, harmful acts of other members of the society.

- When we breach this duty of care imposed on us by law, we commit the tort of negligence.

 

Essential Element of Negligence 

- The defendant owed a duty of care to the plaintiff.

- The defendant breach the duty.

- As a result of the breach the plaintiff suffered damages.  

Essentials of Negligence Tort

1. Duty to Take Care

There is an important condition under the liability for negligence that the defendant owes a legal duty towards the plaintiff. The following case laws will help us to understand the important element.

In Grant v. Australian Knitting Mills Ltd., 1935 AC 85;  From a retailer, the plaintiff purchases two sets of woolen underwear. After wearing it, he suffers from a  skin disease. This problem occurs due to the excess amount of sulphates present in the wool and not removing it at the time of washing it due to the negligence at the time of washing it. In this case, the manufacturers are completely liable as they are not able to perform their duty correctly.

2. Duty to whom

Donoghue v. Stevenson, 1932 , adds further to this idea and expands the scope of duty by stating that the duty so raises extends to our neighbor. While explaining who is my neighbor LORD ATKIN states that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

3. Duty must be towards the plaintiff

It is not ample that the defendant owes a duty to take care of. A duty should be there, according to which, the defendant should owe a duty of care towards the plaintiff.

4. Breach of Duty to take care

One very important condition for the liability in negligence is that the plaintiff must prove that due to the negligence the defendant is not able to perform his duties.

In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 ; a number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk, Delhi.

The normal life of such structures are normally 40 45 years but the tower was around 80 years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they are not able to take care and perform their duties efficiently.

 

 

 Principle of Foreseeability

Duty depends on reasonable foreseeability of injury of the plaintiff - If at the time of the act or omission, the defendant could reasonably forsee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable for Negligence.  

 

Donoghue V Stevenson

A purchase a bottle of ginger beer from a retailer for the appellant, a lady friend after 0.5 consumption she found a decomposed body of snail in her glass and closed with a metal cap so its content was not visible she  bought an action the manufacturer for damages.

The defendant pleaded that-

- He did not owe any duty of care toward the plaintiff.

- The plaintiff was a stranger to the contract and her action was therefore, not maintainable (Privity of Contract).

But all these defenses were denied  and defendant held liable  for negligence.

 

Trespass 

The tort of Trespass is direct physical interference  to another's body or property. Trespass is of two kinds- Trespass to person and trespass to property.

It means unlawful and unjustified interference with a person's body.

Types of Trespass

Trespass consist of both civil and criminal elements. 

CIVIL TRESPASS:- Roaming around and unintentionally entering into someone’s property without their permission would come under civil trespass. In the cases of civil trespass, the enforcement of the law is to be done by a private individual to bring a lawsuit.

Eg:- P

Lavani was inside in her car and suddenly Raman walks in the car and sat down without her permission. Here in this case Lavani can file a suit for civil trespass case against Raman because Raman’s interference was without Lavani’s permission.

CRIMINAL TRESPASS:- It has been defined under section 441 of the Indian penal code,1860. Entering into a property that is in someone else’s possession with a malicious intention to create an offense is termed as Criminal trespass. In such cases, the law is imposed by the police and attorney’s whether it is state or local. The punishment for criminal trespass is imprisonment which may extend to 3 months or a fine which may extend to 500 rupees or both.

Eg:- Ranchit owns a farm and Tanisha entered the farm without Ranchit’s permission for enjoying and roaming around. This can be termed as civil trespass. But Tanisha goes and steals one of the Ranchit’s owned goats, then in this case Tanisha will be held liable for Criminal trespass.

Here in the above-mentioned case, Ranchit can bring action against Tanisha. He may forcefully eject her and defend his possession. Note:- the action includes as per the case may be, claims for damages or injunctions.

 

An unlawful act is committed against the property of another person and also against another person. It can be categorized as:-

1. TRESPASS TO PERSON

Trespass to the person means an intentional interference with any person’s body or liberty. It can occur even when a victim doesn’t suffer from any physical harm. There are three main wrong that falls under this category of trespass

(i) Battery 

The wrong of battery is committed when there is an intentional application of force to another person without any lawful justification. Its essentials are:-

• Use of force
• Without any lawful justification

Eg. Vihaan goes to Bipin and punches him with the force strong enough to hurt Bipin and Vihaan had the intention to hurt Bipin so this is termed as Battery.

(ii) Assault

Whenever there is a reasonable apprehension of use of force without any lawful justification by one person on the other is termed as an Assault. The essentials for assault are:-

• Reasonable apprehension of use of force
• Without any lawful justification

Eg. Ansh was busy shopping and suddenly Binod pulls out his gun and threatened him to shoot the gun so this is assault.

(iii) False Imprisonment

Imprisonment in law means confinement in a prison. In literal terms, it is the act of restraining the personal liberty of an individual. In further simpler terms, imprisonment is something that takes away your ‘liberty’ in terms of free movement, residence, and actions.

It is the total restraint on the liberty of a person for however a short a time without lawful exercise. The essentials of false imprisonment are:-

• Total restraint of the liberty of a person
• Such restraint is unlawful

Eg. Ankita restrains a kid in a room and forbids him to meet his parents and also threatens him that she will not be providing food and other necessities so this is false imprisonment.

2. TRESPASS TO PROPERTY

Property in literal terms means anything whether it be Land, Building, Car, House, etc. over which someone has a legal title is called a property. So trespass to property arises when there is an interference with any tangible or intangible object which is under someone else possession without any lawful justification is termed as trespass to property.

Eg. Aashi enters Balram’s land and broke his window so this is trespass to property committed by Aashi.

Trespass to property can be subcategorized under the following categories:-

• Trespass to animals 
• Trespass to movable property
• Trespass to immovable property

• TRESPASS TO ANIMALS

Animals especially domestic animals are treated as movable property or livestock in legal and accounting language. If the domestic animal owned by a person trespasses a land and does damage to the property of the owner. Then he has a right to use reasonable force to deter them from his property. He also has a right to lien over those animals until the damage is paid by the owner.

• TRESPASS TO MOVABLE PROPERTY

Section 2(9) of the Registration Act 1908 defines movable property as: 

‘Movable property’ includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property. When a person with a malicious intention causes any harm to the movable property of others this is termed as the commitment of trespass to movable property. It means the unjustified intrusion of some else’s property without his consent.

Eg. Akasha’s friend Binod enters Akasha’s van and broke a window without her permission. Here Binod is liable for the act of trespass to movable property.

• TRESPASS TO GOODS

Whenever there is an intentional interference of goods that are in someone else’s possession without any lawful justification, then this is termed as Trespass to goods. The essentials include:-

• Interference with someone else goods
• Without lawful justification

Eg. Ajay poisoned Binay’s dog so this is called Trespass to goods.

Kirk v. Davis

In the mentioned case the defendant after the death of her brother in law removed some jewelry from the room where his dead body was lying to another safer place. The jewelry was stolen from the place where it was now kept. It was held that the defendant was liable for the trespass to goods by her act in moving of property.

TRESPASS TO IMMOVABLE PROPERTY

Immovable property as per section 3(26) of the General Clauses Act 1897, “immovable property” shall include land benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Immovable property means and includes land, house, flat, minerals, metal ores, etc. The act of unlawful and unjust possession or even an unjustified entry on the land means trespassers to immovable property.

Eg. Anisha enters Binay’s house without his permission and broke an antique piece so this is the trespass of immovable property committed by Anisha.

Trespass to Land

Land includes the soil, any fixtures permanently attached to the land(House, Walls, Poles, etc.) also the airspace above the land and ground below up to a reasonable height and depth. Trespass is direct interference with possession of enjoyment of the land of another, interference could be by a person himself or by some other material object. 

Gregory v. Piper(1829) 

In the following case defendant used to throw trash on the plaintiff’s land. And it was held that it was a direct intrusion to leave rubbish in the defendant’s land and therefore as held liable for trespass.

Kelsen v. Imperial Tobacco [1957] 2 QB 334

In the mentioned case the plaintiff was successful to claim the Injunction against the defendant based on trespass. They had hung an advertising sign that projected into the airspace above the plaintiff’s land by four inches. It was held that airspace till a reasonable limit is part of the land.

SMITH v. STONE

In the mentioned case the defendant was carried on the land of another by force so it was held that since the defendant was taken to the plaintiff’s property involuntarily the defendant would not be held liable for trespass but the people who forced and took the defendant there would be held liable for trespass to land.

Defenses available for Trespass to Land

1. LICENSE:- Basically, it is an expressed or implied permission given by the person who has the possession over the land to be on land so much interference is justified but when the same person revokes his permission and ask you to get out of his land but you are still present there this would constitute as wrong of trespass. This is termed trespass ab initio.

2. JUS TERII:- It refers to such a situation where the defendant can prove that the land is not possessed by the plaintiff but by a third party and the plaintiff is not acting on behalf of the third party.

3. NECESSITY:- It refers to such a situation in which it is vital to commit the trespass. To avoid the greater harm a person carries out smaller harm so this act is termed as that of necessities. 

 

Liability 

Strict Liability

It is a kind of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. It is basically a legal doctrine that holds a party (defendant) responsible for its actions, without the plaintiff having to prove the negligence or fault on the part of defendant. When any person involves in ultra hazardous activities such as keeping wild animals, using explosives or making defective products, then he/she may be held liable if any other person is injured because of that activity, even if the defendant took necessary precautions and followed safety requirement.

In Rylands v. Fletcher case, the defendant got a reservoir constructed through independent contractor. There were old unused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff's coal mines on adjoining land.
The defendant did not know about the shaft and had not been negligent, but he was held liable. This is also called the -No fault' liability. In the given case, the liability recognised was 'strict liability' i.e. even if the defendant was not negligent or did not cause any intentional harm, he could still be liable under the rule.

Essentials of Strict Liability

For the application of the rule, the following three essentials should be there:

1. Dangerous Things
   According to this rule, the liability for the escape of thing from one's land arises only when the thing collected was a dangerous thing. In Rylands v. Fletcher, the thing was large water body (reservoir). The rule is also applied to gas, electricity, vibration, sewage, explosive, etc.
   
   
2. Escape
   For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. The case of Read v. Lyons and Co, is an example of no escape and hence no liability. In this case, the plaintiff was an employee in the defendant's ammunition factory, while she was performing her duties inside the defendant's remises, a shell, which was being manufactured there, exploded and she was injured. There was no evidence of negligence on the part of defendant. It was held that the defendant was not liable because there was no escape of thing outside the defendant's premises. So, the rule of Rylands v. Fletcher did not apply to this case.
   
   
3. Non-natural Use of Land
   There should be non-natural usage of land to make the defendant liable. Like in Rylands v. Fletcher case, collecting large body of water is considered to be non-natural use of land.
   
   In Sochacki v. Sas, it has been held that having a fire place is natural use of land. Even if there is escape of fire from the fire place and the plaintiff suffers harm, the defendants were not held liable as there was no non-natural use of land.
   

 

Exceptions to the Rule of Strict Liability

The following exceptions to the rule have been recognised by Rylands v. Fletcher and some later cases:

1. Act of God
   Act of God (vis major) was also considered to be a defence against the action of strict liability. If the escape has been unforeseen and takes place because of super natural forces without any human intervention, the defence of act of God can be pleaded.
   
   In the case of Nichols v. Marsland, the defendant created artificial lakes on his land by damming up a natural stream. That year, there was extraordinarily heavy rainfall by which embankment constructed for lake gave way. The rush of water washed away plaintiff's four bridges. The plaintiff brought an action to recover damage for the same. It was found out that there was no negligence from defendant's side. The accident was considered an act of God and the defendant was not held liable.
   
   
2. Consent of the Plaintiff
   When the plaintiff has consented to the accumulation of the dangerous thing on the defendant's land, the liability under the rule does not arise. Such consent is implied where the source of danger is for the 'common benefit' of both the plaintiff and the defendant.
   
   In Carstairs v. Taylor case, the plaintiff hired ground floor of a building from the defendant. The upper floor was occupied by defendant. Water stored on the upper floor leaked without any negligence on the part of the defendant. The water destroyed the plaintiff's goods on the ground floor. As the water had been stored for the benefit of both, the plaintiff and the defendant, the defendant was not held liable.
   
   
3. Act of Third Party
   If the harm has been caused due to act of a stranger, who is neither the defendant's servant nor the defendant has any control over him, the defendant will not be liable under this rule. Thus, in Box v. Jubb, the overflow from the defendant's reservoir was caused by the blocking of a drain by strangers, the defendant was not held liable for that.
   
   
4. Statutory Authority
   An act done under the authority of State is a defence to an action for tort. The defence is also available when the action is under the rule in Rylands v. Fletcher. Statutory authority however cannot be pleaded as a defence when there is negligence.
   
   In Green v. Chelsea Waterworks Co., the defendant company had a statutory duty to maintain continuous supply of water. A main belonging to the company burst without any negligence on its part, as a consequence of which the plaintiff's premises were flooded with water. It was held that the company was not liable as the company was engaged in performing a statutory duty.
   
5. Plaintiff's Own Default
   Damage caused by escape due to the plaintiff's own default was considered to be a good defence in Rylands v. Fletcher itself. If the plaintiff suffers damage by his own intrusion into the defendant's property, he cannot complain for the damage so caused.

In Ponting v. Noakes, the plaintiff's horse intruded into the defendant's land and died after having nibbled the leaves of a poisonous tree there. The defendant was not held liable because damage would not have occurred, but due to the horse's own intrusion to the defendant's land, damage occurred.

 

Absolute Liability

The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the exception. In India, the rule of absolute liability evolved in the case of MC Mehta v. Union of India.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule of absolute liability on the rule of strict liability and stated that the defendant would be liable for the damage caused without considering the exceptions to the strict liability rule.

Bhopal Gas Tragedy

This rule was upheld in the infamous Bhopal Gas Tragedy which took place between the night of 2nd and 3rd December, 1984. Leakage of 'Methyl Isocyanate' poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a major disaster. Over three thousand people lost their lives. There was heavy loss to property, flora and fauna. A case was filed in the American New York District Court as the Union Carbide Company in Bhopal was a branch of the US based Union Carbide Company. The case was dismissed owing to no jurisdiction. The Government of India enacted the Bhopal Gas Disaster Act, 1985 and sued the company for damages on behalf of the victims. The court applying the principle of Absolute Liability held the company liable and ordered it to pay compensation to victims.

 

Vicarious Liability

The rule of vicarious liability imposes liability on one person for the act done by another person. Normally, a person who has done the wrongful act should alone be made liable for the injurious consequences arising out of it, but the principle of vicarious liability is an exception to it. In order to held a person liable for the act done by another person, it is necessary that there should be a certain kind of relationship between the two persons and the wrongful act done should be, in a certain way, connected with that relationship. The common examples of such relations include principal-agent relationship, master-servant relationship and partners.

1. Principal-Agent Relationship

   Where an act is authorized by the principal and done by the agent, both of them are liable. The authority to do the act may be express or implied. When an agent does a wrongful act in the ordinary course of the performance of his duties as an agent, the principal shall be held liable for such an act. However, there is no doubt, that the agent is also liable for his act. Thus, their liability is joint and several.
   
   In Lloyd v. Grace, Smith and Co. (1912), Mrs Lloyd, who owned two cottages but was not satisfied with the returns, there from, approached the office of Grace, Smith and Co., a firm of solicitors to consult them about the matter of her property. The managing clerk of the company attended her and advised her to sell the two cottages and invest the money in a better way. She was asked to sign two documents which were supposed to be sale deeds. In fact, the documents that got signed were gift deeds in the name of the managing clerk himself. He then disposed of the property and misappropriated the proceeds.
   
   He had acted solely for his personal benefit and without the knowledge of his principal. It was held that since the agent was acting in the course of his employment, apparently and ostensibly, the principal was held liable for the fraud. In State Bank of India v. Shyama Devi, the woman's (plaintiff) husband gave some amount and cheques to his friend, who was an employee in the defendant bank, to deposit into the plaintiff's account. No receipt was obtained and the bank employee misappropriated the amount. It was held by the Supreme Court that the employee, when he committed the fraud was not acting in the scope of bank's employment but in his private capacity as the depositor's friend, therefore the defendant bank could not be held liable for the same.
   
   

2. Partners

   The relationship between partners is that of principal and agent. Therefore, the rules of the law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, the other entire partners are liable to the same extent, as the guilty partner. The liability of each partner is joint and several.
   In Hamlyn v. Houston and Company, one of the two partners of the defendant's firm, acting within the general scope of his authority as a partner, bribed the plaintiff's clerk and induced him to make a breach of contract with his employer (plaintiff) by divulging secrets relating to his employer's business. It was held that both the partners of the firm were liable for this wrongful act (including breach of contract) committed by only one of them.
   
   

3. Master and Servant Relationship

   If a servant does a wrongful act in the course of his employment, the master is liable for it. Though, the servant is also liable. The wrongful act of the servant is deemed to be the act of the master as well. The doctrine of liability of the master for act of his servant is passed on the maxim respondeat superior, which means 'let the principal be liable' and it puts the master in the same position as if he had done the act himself.
   
   It also derives validity from the maxim qui facit per alium facit per se, which means 'he who does an act through another is deemed in law to do it himself.'
   
   There are two essentials which should be satisfied by a plaintiff before he can succeed against the defendant, fixing vicarious liability on him for any wrongful act done by the latter's servant, which are as follows:
   
   1. He must establish that the relation of master and servant subsisted between the defendant and actual wrong doer.
   2. He must also prove that the wrongful act was done by the servant whilst he was engaged in the course of employment of the defendant.

Difference between Servant and an Independent Contractor

A servant is an agent who is subject to the control and supervision of his employer regarding the manner in which the work is to be done, where as an independent contractor is not subject to any such control. He is his own master and exercises his own discretion.

An independent contractor is one who undertakes to produce a given result, but in the actual execution of that work, he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.

For example, my car driver is my servant. If he negligently knocks down X, I will be liable for that. But if I hire a taxi for going to the airport and the taxi driver negligently hits X, I will not be liable towards X, but the taxi driver alone will be liable for that because the driver is not my servant but only an independent contractor.

As a general rule, the master is liable for the torts committed by his servant, but an employer is not liable for the torts committed by an independent contractor employed by him.

In Morgen v. Incorporated Central Council, the plaintiff, while he was on a lawful visit to the defendant's premises, fell down from an open lift shaft and got injured. The defendants had entrusted the job of keeping the lift safe and in proper order to certain independent contractors. It was held that, for this act of negligence on the part of the independent contractors in not keeping the lift in safe condition, the defendants could not be held liable.

The general rule that an employer is not liable for the acts of an independent contractor is subject to some exceptions. In the following exceptional cases, an employer can be made liable for the wrongs of the independent contractor:

1. Where the contractor is employed to do an illegal act. In such cases, the employer is undoubtedly liable on the principle of vicarious liability.
2. Contractor negligently employed by employer for the discharge of duties which he is bound to do himself properly.
3. An employer is liable for the act of an independent contractor in cases of strict liability.
4. The liability of the employer also arises for the dangers caused on or near the highway. In Tarry v. Ashton, the plaintiff was injured by the fall of a lamp overhanging the footway adjoining the defendant's house. The lamp was attached to the defendant's house through some independent contractors. It was held that it was the defendant's duty to see that the lamp was reasonably safe there and he could not escape from his liability by getting the job done through independent contractors.

Liability of Vehicle Owners

The liability pertains to the cases of accident caused by mechanics, repairers or owners of workshops during the test drive of the vehicles entrusted to them by the owners of the vehicles for repairs.

In B Govindarajulu v. MLA Govindaraja Mudaliar, a motor lorry was entrusted by its owner for repair. While an employee of the workshop was driving it the lorry met with an accident. It was held by the Madras High Court that the lorry owner was not vicariously liable because the owner of the workshop was an independent contractor and not a servant of the owner.

Vicarious (Tortious) Liability of State
Liability of the State for the tortious acts of its servant is known as tortious liability of State. The liability of State for the torts committed by its servants is based on following three principles:

1. Respondent superior i.e. let the principal be held liable.
2. Qui facit per alium facit per se i.e. he who acts through another does the act himself.
3. Socialisation of compensation.

The Constitution of a country seeks to establish it's fundamental or basic organs of government, administration and endeavours to define and describe the structure, composition, powers and principal functions, their interrelationship and attempts to regulate States relationship with the public. As such, the Constitution of India contains certain provisions relating to tortious liability of the State.

Position of Vicarious Liability of State in India

English law, i.e. Crown Proceedings Act, 1947, in which King is liable for a tort committed by its servant just like a private individual, there is no statutory provision regarding the liability of the State in India. However, Article 300 of the Constitution provides for the liability of State.

 

 

 

 

 

 

 

 

 

 

 

This article is written by Sachin Bansiwal, student of National law College.