Judicial interview questions for Tort

Ans. A tort is defined as redressable civil wrongs, i.e., wrongs for which the injured party may claim remedies from the party who is inflicting such wrong on him. In a case of civil wrong, the injured party, i.e., the plaintiff, institutes civil proceedings against the wrongdoer, i.e., the defendant. In such a case the main remedy is damages. The plaintiff is compensated by the defendant for the injury caused to him by the defendant.

Q. What is the difference between tort and contract?

Ans. In tort, there is a breach of duty which is fixed by law. But in the contract, there is a breach of duty which is fixed by the contracting party. In tort motive for breach of duty is immaterial, in contract motive for breach of contract is of- ten taken into consideration. In tort, there is a violation of a right in rem i.e., a right vested in some determinate person and available against the whole world. A breach of contract is an infringement of a right in personam i.e., a right available only to a definite person and in which society has no concern. In tort, damage is generally unliquidated and isdetermined by the court on the facts and circum- stances of the case. In a contract, damages are fixed according to the terms and conditions of the contract.

Q. What is the difference between tort and crime?

Ans. In tort, there is an infringement of the private or civil rights of an individual. In crime, there is a breach of public rights which affects the whole community. In tort, the main aim is to re-compensate the plaintiff for the loss suffered by him from the wrongful act of the defendant. But in crime, the main aim is to punish the accused if convicted to set an example that such crime is not repeated in the future.

Q. What is the foundation of vicarious liability under the law of tort?

Ans. Vicarious liability is based on the basic principle that he who does an act through another is deemed in law to do it himself. When an act is authorized by the principal and is done by the agent, both are liable. The liability is joint and several. The liability of the master arises even when the servant acts against the express instructions of the master. The Master will be liable for the tort of his servant only if the following conditions are satisfied:

(1) The wrong should be committed by a person working in the capacity of a servant.

(2) The tort should have been committed by such a person in the course of his employment.

Q. Explain the rule laid down in Rylands vs. Fletcher?

Ans. There are situations when a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause the harm, or sometimes he may even have made some positive efforts to avert the same. In other words, sometimes the law recognizes ‘No fault’ liability. In this connection, the rules are laid down in two cases, firstly, in Rylands v. Fletcher.

The rule laid down in Rylands v. Fletcher is generally known as the ‘Rule of Strict Liability’.

The basis of the liability in the above case was the following rule propounded by Blackburn.

The person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.

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

(1) Some dangerous thing must have been brought by a person on his land.

(2) The thing thus brought or kept by a person on his land must escape.

(3) It must be non-natural use of land.

Q. What rule was laid down in M.C. Mehta vs. Union of India?

Ans. In this case,the Rule of Absolute Liability was laid down. The Supreme Court took a bold decision holding that it was not bound to follow the 19th century rule of English Law, and it could evolve a rule suitable to the social and economic conditions prevailing in India at the present day. It evolved the rule of ‘Absolute Liability’ as part of Indian Law in preference to the rule of Strict Liability laid down in Rylands v. Fletcher. It expressly declared that the new rule was not subject to any of the exceptions under the rule in Rylands v. Fletcher.”

We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm, results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

The Court gave two reasons justifying the rule:”Firstly, that the enterprise carrying on such hazardous and inherently dangerous activity for private profit has a social obligation to compensate those suffering therefrom, and it should absorb such loss as an item of overheads, and Secondly, the enterprise alone has the resources to discover and guard against such hazards and dangers.”

Q.What do you understand by ‘nuisance’ and what are its kinds?

Ans. It is an “unlawful interference with other’s use or enjoyment of land or of some right over it or in connection with it”. It is a kind of interference with a person’s comfort, health, or safety. Nuisance is generally a continuing wrong. A stray act is ordinarily not a nuisance. A nuisance may be caused in various ways such as the causing of unnecessary noise, heat, smoke, smell, and the doing of other such disturbing activities. It occurs when the right of the public, in general, is interfered with. Nuisance is of two types: (a) Public nuisance (b) Private nuisance

Q. What is the difference between public nuisance and private nuisance?

Ans. Public Nuisance– Public nuisance occurs when the right of the public, in general, is interfered with. It is a crime and not a mere civil wrong committed against the rights of one person, and as such, a commission of a public nuisance results in punishment by the State, which may be fine or imprisonment.

Private Nuisance– When the injury is caused to a particular individual, it is a case of private nuisance. Claim in private nuisance must be based on the factum of interference with the plaintiff’s enjoyment of his land. A tort of private nuisance may be abated by the aggrieved party. An action for damage lies in case of private nuisance and an aggrieved person may bring action for damages. A private nuisance may become legal by prescription i.e., continuous and unobstructed existence for 20 years.

Q. What is the difference between the rule of strict liability and the rule of absolute liability?

Ans. The rule of Rylands v. Fletcher is subject to many exceptions. The new rule laid down in M.C. Mehta’s case is absolute and it is not subject to any exceptions. The rule laid in Rylands case the former applies only when there is escape of dangerous things from the land of the defendant.

The rule of absolute liability applies in a case of a hazardous or inherently dangerous activity and harm is caused to a person due to such activity.

The rule in Ryland v. Fletcher does not cover cases where harm to a person is done within the premises as the rule requires that the thing causing harm must escape from the premises of the defendant. The rule of absolute liability applies in both situations whether the person suffers harm within the premises or outside.

Q.What is negligence in tort?

Ans. Negligence means the conduct of a person which creates a risk of causing damage. In a case of negligence, the person has to prove the following things that the person is negligent:

(1) owed a duty of care to him

(2) made a breach of that duty

(3) that he suffered damage as a result of it

Q. Explain the doctrine of ‘res ipsa loquitur’?

Ans. The general rule in negligence is that the plaintiff/ complainant must prove that the defendant was negligent. This is consistent with the notion of a person being innocent until proven guilty. However, in some cases, this rule may be reversed. This is where the doctrine of res ipsa loquitor comes in.

Res ipsa loquitor means “the thing speaks for itself”. This doctrine comes into play when the act that caused the injury to the plaintiff itself raises a strong presumption of negligence on the part of the defendant; i.e. where the act could not have happened but for the negligence of the defendant. In such cases, the plaintiff just has to show that:

•The incident happened;

•It caused the injury; and

•The defendant was in control of, or responsible for whatever caused the incident.

•Once the plaintiff can show this, the doctrine of res ipsa loquitor comes into effect and it is up to the defendant to show that he was not negligent i.e., the burden of proof is reversed.

Q.What are the essential elements of the tort of defamation?

Ans. Reputation is an inherent personal right enforceable against all other persons and every person has a right to maintain and preserve his reputation. Any injury to or violation of this right is called defamation. Defamation means “an attack on the reputation of a person”. It can be defined as, “the publication of a statement which tends to lower a person in the estimation of right thinking members of society.” It is more of an injury to the reputation of a person as compared to an injury to one’s self-respect. In an action for defamation, the following constituents are essential:

1. The statement must be defamatory;

2. The defamatory statement must, directly or indirectly, refer to the person defamed, and

3. The statement must be published through some medium.

Q.What is Damnum Sine Injuria?

Ans. It means that a man may have suffered damage but if there is no infringement of a legal right, then no action arises. Such a case is not a valid claim in the Court of law.

Examples–

(1)A Schoolmaster set up a rival school in front of B’s school. Because of the competition, ‘B’ had to reduce his fee from Rs. 100 to Rs. 35 per scholar per month. It was held that ‘B’ had no remedy even though he suffered a loss because of competition.

(2). The demolition of the buildings illegally constructed by the plaintiff did not result in any “injuria” and therefore, the defendants, i.e., the municipal authorities could not be made liable for the same.

Q. What is Injuria Sine Damnum?

Ans. It means injury without damage i.e., there is an infringement of a legal right but there is no damage or harm, or loss. It is always actionable i.e.; a suit can be brought to claim damages for it. This is a valid claim in a Court of law. Examples –

(1)If A has trespassed upon B’s property, he can be held liable even if that trespass had not caused any damage whatsoever to B.

(2)The defendant, a returning officer did not allow the plaintiff to vote. The plaintiff did not suffer any loss by this refusal because the candidate for whom he wanted to vote won in spite of that but the defendant was, however, held liable, because the plaintiff’s legal right had been violated.