NATIONAL LAW INSTITUTE UNIVERSITY KERWA DAM ROAD BHOPAL

TRIMESTER: FIRST TRIMESTER SESSION: 2011 2012 SUBJECT: LAW OF TORTS - 1

A PROJECT PAPER ON: Strict liability With detail case study of Mason v. levy auto parts ltd.

Submitted By:pratik saraswat roll no. 2011 B.A.,LL.B 27 Submitted To: Prof.(Dr.)Rajiv Kumar Khare

TABLE OF CONTENTS TOPIC

INTRODUCTION

PAGE NO.
3

DEFINITION OF TORT

DEFINITION OF THE TERM DAMNUM SINE INJURIA

INJURIA SINE DAMNO

Damnum Sine Injuria vs. Injuria Sine Damno

THE RIGHT TO DAMAGES

THE REMEDY FOR WRONGS

THE MALICE FACTOR

GENERAL ILLUSTRATIONS AND LANDMARK CASES OF Damnum sine injuria 9

CONCLUSION

15

BIBLIOGRAPHY

15

INTRODUCTION
Offences of strict liability are those crimes which do not require mens rea with regard to at least one or more elements of the actus reus. The defendant need not have intended or known about that circumstance or consequence. Liability is said to be strict with regard to that element. There are situations when a person may be liable for some harm even though he is not negligient in causing the same,or there is no intention to cause the harm or sometimes law recognizes NO FAULTliability. In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The plaintiff need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases.

A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable. Another example is a contractor hiring a demolition subcontractor that lacks proper insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs

DEFINITION OF TORT

A tort is a civil wrong for which compensation in damages is recoverable , in contradiction to crime and misdemeanour ,which is punished by criminal law in the interest of society at large. To constitute a tort , two things must concur actual or legal damage to the plaintiff and a wrongful act committed by the defendant .Ez demno sine injuria non oritur action ,is an ancient maxim of common law which means There must be a damage , either already fallen upon the party or inevitable there must also be a thing done amissOne person cannot, either , maintain maintain an action against another for a mere illegal or wrongful act ,unless he has thereby sustained an injury. It is injuria sine damno wrong without damage to the plaintiff .A man , on the other hand ,may sustain grievous damage at the hands of another, and yet, if it be the result of inevitable accident ,or a lawful act done in a lawful manner without any carelessness or negligence ,there is no injury in the contemplation of law, and no tort giving rise to an action for damages.

objectives
To understand what is strict liability? To understand which essentials constitute strict liability? To understand difference between strict liability and absolute liability

To understand strict liability with the case of Mason Vs Levy auto parts of England Ltd.

Essentials of strict liability

Dangerous things ;- over the years Rylands Vs Fletcher has been applied to a remarkable variety of things,fire, gas, explosions,electricity, oil, noxious fumes,colliery spoil,rusty wire iron a decayed fence,vibration poisonious vegetation,a flag pole ,etc. Escape ;-The requirement of escape was firmly set in Read Vs J. Lyons & co.Ltd . The plaintiff was employed by Ministry of supply as an inspector of munitions in the defendants munitions factory and in the course of her employment there,was injured by the explosion of a shell that was being manufactured . it was admitted that high explosive shells were dangerous.the defendant were held not liable. There were no allegation of negligience on their part and Rylands Vs Fletcher was inapplicable because there had been no Escapeof the thing that inflicted injury. Escape was defined as Escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control. Land;- The rule is not confined to the case where the defendant has occupation or control of the land on which the dangerous thing is accumulated the defendant in Rylands Vs Fletcher itself appears to have had only a licence from the landowner to construct the reservoir .similarly the rule has been applied in cases where tha defendant has a franchise or statuory right,for example to lay pipes to carry gas or cables for electricity.Indeed,there are statements to the effect that anyone who collects

the dangerous thing and has control of it at the time of escape would be liable,even when it is being carried on the highway and escapes therefrom. Personal injury;-cases which have held or assume that Rylands Vs Fletcher is applicable to personal injuries may have ignored the requirement of landholding status,but it is impossible that an adjoining occupier might suffer personal injury ,in which case the question of the applicability of the rule to personal injuries would have to be directly addressed. Non-natural use;-use of the land must be non-natural like in Rylands Vs Fletcher water accumulated in so large quantity became non-natural use of land. This are the essentials which constitute a case of strict liability. Difference between strict liability and absolute liability Strict liability refers to liability despite the absence of any mens rea in relation to one or more elements of the actus reus of an offence. Absolute liability refers to liability despite the absence of any mens rea in relation to the elements of the actus reus and without the availability of any defence other than that the defendant is under 10 . Strict liability is sometimes spoken of as absolute liability and the corresponding expressions of absolute prohibition and absolute o(ence are occasionally used.9 Such statements involve a confusion between strict liability and absolute liability, a concept which generally has no part in the criminal law. Absolute liability refers to liability despite the absence of any mens rea in relation to the actus reus and without the availability

of any defence such as duress by threats or circumstances, compulsion, automatism or insanity, other than the fact that the defendant is under 10 (in which case he is irrebuttably presumed incapable of crime). Absolute liability is a concept which o(ends any idea of justice. In an Australian case it has been criticised as a throwback to a highly primitive form of concept.

land or goods and libel are instances of torts that are actionable per se , and the court is bound to award to the plaintiff at least nominal damages if no actual damage is proved.

Damnum Sine Injuria vs. Injuria Sine Damno

The result of the maxim of Damnum Sine Injuria and Injuria sine Damno is that there are moral wrongs for which the law gives no legal remedy through they cause great loss or detriment ; and , on the other hand ,there are legal wrongs for which the law does give a legal remedy , though there be only violation of a private right, without actual loss or detriment in the particular case.The cases of Damnum sine Injuria are called variously , express loss ,particular damage , damage in fact , special or particular loss.But actual damage is better expression to be used in the present context. Actual damage is the gist of action in following action (1) Right to support land in as between adjacent landowners (2) Menace (3) seduction (4) slander (except in four cases) (5) Deceit (6) conspiracy or confederation (7) waste (8) distress damage feasant (9) negligence (10)nuisance consisting of damage to property (11) actions to procure persons to break their contracts with others.

THE RIGHT TO DAMAGES

There is, then ,no right to damages where there is no wrong. It is not requisite that there should be a tort strictly speaking,that is to say , a wilful wrong , an act involving moral guilt. The wrong may be wither a wilful ,malicious injury ,as in case of assault and battery , libel etc. ;or one committed through mere motives of interest ,as in some cases of conversion of goods , trespass of lands ,etc.; or it may consist in a mere neglect to discharge a duty with suitable skill or fidelity ,as where a surgeon is held liable for malpractice ,or sheriff for an escape.

THE REMEDY FOR WRONGS

Among the old maxims of the law is to be found the one that for every wrong there is a remedy. Whenever the law creates or recognises a private right ,it is also supposed to give a remedy for violation of it.The general principle that whenever there is a fraud or deceit by the one party and injury to the other, there an action will lie ,is often referred to with approbation ,and generally recognised as law. But these principles however true as general proposition ,must be understood with such qualification and limitation as other principles of law, equally sound necessarily impose upon them. There may be many moral wrongs for which there can be no legal remedy. And there can be many acts in which damage to individuals may be very great, and yet so remote, contingent , or indefinite as to furnish no good ground of action. Thus, to maintain an action for deceit and fraud of another , it is indispensible that the plaintiff should show , not only that he had sustained damage , and that the defendant has committed a tort ,and that the damage

is the clear and necessary consequence of the tort, and that it can be clearly defined and ascertained. So , an action on the case for the fraud of the defendant purchasing personal property of the plaintiffs debtor ,and aiding the debtor to abscond ,in order to prevent the plaintiff from enforcing payment of his debt by attaching the property or arresting the body of the debtor, cannot be sustained ; but the proper remedy is either to attach specifically, the property fraudently transferred or to attach it defendants hands by proceeding in the nature of garnishment- provided the plaintiff has no special property ,or any interest in or claim on any property which was destroyed or injured by any act of the defendant.

THE MALICE FACTOR

In Bradfort Corporation v. Pickles The House of Lords went a step further and held that even if the harm to the plantiff has been caused maliciously, no action can lie for the same unless the plaintiff can prove thathe has suffered injuria. In the case the plaintiff had been deriving water from the adjoining land of the defendant which was at the higher level.The defendant sank a shaft over his own land which diminished and discoloured the water flowing to the land of the plaintiffs. The plaintiffs claimed an injunction to restrain from sinking the shaf talleging that the sole purpose of the same was to injure the plaintiff as they did not purchase his land at an exorbitant price.The house of Lord held that since the defendant was exercising his lawful right , he could not be made liable even though the act, which injured the plaintiff , was done maliciously. Lord Ashbourne said :The plaintiffs have no excuse unless they can show that they are entitled to the flow of water in question , and that the defendant has no right to do what he is doing. The law stated by the house in Chesmore v. Richards cannot be questioned .Mr. pickles has acted within his legal rights throughout; and is he to forfeit those right and be punished for their legal exercise because certain motives are imputed to him?If his motives were the most generous and philanthropic in the world, they could not avail him when his actions were illegal.If his motives are selfish and mercenary , there is no reason why his rights should be confiscated , when his actions are legal.

Thus, a legal act , though motivated by malice , will not make the defendant liable.The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise.
1

GENERAL ILLUSTRATIONS AND LANDMARK CASES OF Damnum sine injuria

Inception of percolating water A landowner or mill owner who hada for about six
years enjoyed the use of a stream ,which was chiefly supplied by percolating underground water , lost the use of the stream after an adjoining owner dug on his own ground in extensive well for the purpose of supplying water to the inhabitants of the district. In an action brought by the landowner it was held that he had no right of action .In Acton v. Blundell ,a landowner in carrying on mining operations on his land in the usual manner drained away the water from the land of another owner through which water flowed in a subterraneous course to his well , and it was held that the latter had no right to maintain an action. Where the defendant intended to divert underground water from a spring that supplied the plaintiff corporationswork , not for the benefit of his own land but in order to drive the corporation to buy him off ,it was held that the defendants conduct was unneighbourly but not wrongful and therefore no action lay. The rule as to the right of a landowner to appropriate percolating underground water applies equally to brine.

It has again been recently reiterated that a landowner is entitled to exercise his right to obstruct subterranean water flowing in undefined channels under his land regardless of consequences, whether physical or pecuniary ,to his neighbours and regardless of his motives or intention or whether he anticipated damage. On this view, it was held that a landowner was not liable to his neighbour , whose land subsided damaging her house, for extraction of underground water despite warning that it was likely to result in collapse of neighbouring land. But the case also brings forward the necessity of change in law by judicial decision or legislation as modern methods of extraction of underground water without any restriction may bring down the water level in the neighbouring area to such an extent as to dry up all the wells and seriously affect life and vegetation in the neighbourhood. In Chesmore v. Richards , the plaintiff , a mill owner , was for the past 60 years , using water for his mill from a stream which was led by rainfall percolating through the underground strata to the stream , but not flowing in defined channels. The defendant sunk a well on their land and pumped large quantities of water , which would otherwise have gone to the plaintiffs stream , thereby causing loss to the plaintiff. For this , the defendant were held not liable.

Damage caused by lawful working of mine Where a landowner by working his

mines caused a subsistence of his surface, in consequence of which the rainfall was collected and passed by gravitation and percolation into an adjacent lower coal-mine ,it was held that the owner of the latter could sustain no action because the right to work a mine was a right of property , which , when duly exercised , begot no responsibility. In Action v. Blundell, the defendants by digging a coalpit intercepted the water which affected the plaintiffs well , less than 20 years old , at a distance 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 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 sine injuria which cannot become the ground of action.

Setting up rival school Where the defendant, a school master, set up a rival school
next door to the plaintiffs and boys from the plaintiffs school flocked to defendants,it was held that no action could be maintained. Competition is no ground of action whatever damage it may cause, provided nobodys legal right are infringed. In Gloucester Grammar School Case ,the defendant , a schoolmaster ,setup a rival school to that of plaintiffs. Because of the competition , the plaintiff had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiff had no remedy for the loss thus suffered by them. Hankford j. said : damnum may be absque injuria , as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished, I shall have no action against him , although I am damaged..but if a miller disturbs the water from going to my mill , or does any nuisance of like sort I shall have such action as the law gives.

Driving rival trader out of the market -

A , B , C and D ,ship owners ,who shipped

tea from one part to another ,combined together , to keep the entire trade in their hands and consequently to drive F , a rival ship owner , out of trade by offering special terms to customers who deal with them to the exclusion of F , F sued A ,B , C and D for the loss caused by him by their act. It was held that F had no right of action, for no legal right of F had been infringed. Damage done by competition in trade was not actionable. In Mogul Steamship Co v McGregor Gow and Co. a number of steamship companies combined together and drove the plaintiff company out of tea carrying trade by offering reduced freight.The house of Lords held that the plaintiff had no cause of action as the defendant by lawful means acted to protect and extend their trade and increase their profit.

Use of title by spouse after dissolution of marriage- Where the marriage of a

commoner with a peer had been dissolved by decree at the instance of the wife , and she

afterwards , on marrying commoner ,continued to use the title she had acquired by her first marriage , it was held that she did not thereby , though having no legal right to the user , commit such legal wrong against her former husband , as to entitle him in absence of malice , to an injunction to restrain her the use of the title. In Earl Cowley v Countess Cowley Lord Macnaughten put "...everybody knows that it is a very
common practice for peeresses (not being peeresses in their own right) after marrying commoners to retain the title lost by such marriage. It is not a matter of right. It is merely a matter of courtesy, and allowed by the usages of society."

Using of name of another mans house The plaintiffs house was called
Ashford Lodge for sixty years , and the adjoining house belongingto the defendant was called Ashford Villa for forty years .The defendant altered the name of his house to that of plaintiffs house.The plaintiff alleged that this act of defendant has caused them great inconvenience and annoyance , and had materially diminished the value of their property. It was held that defendant had not violated any legal right of the plaintiffs.1

Obstruction to view of shop The plaintiff carried on his business in a shop which had
a board to indicate the materials in which he deal. The defendant by virtue of statutory power erected a gasometer which obstructed the view of his premises. In an action by the plaintiff to restrain by injunction the erection of the gasometer as it injured him by instructing the view of his place of business , it was held that no injunction could be granted for the injury complained of.2

Misdelivery of telegram A sent a telegram to B for the shipment of certain goods. The
telegram company , mistaking the registered address of C for that of B, delivered the telegram to C.C, acting on the telegram ,sent the goods to A.A refused to accept the goods stating that he had ordered the goods not from C ,but from B.C sued the telegram company for damages for the loss

suffered by him. It was held that C had no cause of action against the company ,for the company did not owe any duty of care to C ,and no legal right of C could therefore be said to have been infringed. In Dickson v. Reuters telegram Co., defendants were not held liable even though their negligence had caused damage to the plaintiff. The defendant a telegraph company, negligently delivered a telegram , meant for somebody else ,to the plaintiffs. The telegram contained an order for the shipment of barley for Valparaiso to England. The plaintiff believed that the message was meant for them and shipped the goods, which the sender of the telegram refused to accept. The plaintiff having suffered a heavy loss sued the defendant company. It was held that the defendant company owed a contractual duty, only to the sender of the telegram. Since they did not owe any duty to the recipient of the telegram, they were not liable.

Water supply cut-off Due to negligence of the defendants a fire hydrant near the
defendant factory on an industrial estate was damaged by their lorry. As a result of this , supply of water through the main was cut-off and this caused loss of a days work in the plaintiffs factory. Neither the main nor the hydrant was the property of the plaintiffs. In an action by the plaintiff to recover their loss it was held that the action did not lie as there was no injuria , as the duty not to damage the hydrant was owed to the owners of the hydrant that was damaged and not to the plaintiffs. 1

Indian cases Refusal of employment The plaintiff owned a tug which was
employed for towing ships in charge of government pilots in the Hoogly. The plaintiffs asked an exorbitant price for towing up the ship , whereupon the superintendent of marine issued a general order to officers of the Government Pilot service not to employ the tug in future.The plaintiffs brought an action against the superintendent for damages.It was held that they had no legal right to have their tug employed by Government ,and the action was dismissed.2

Ceasing to offer food to idol Where the servant of a hindu temple had to right to get
the food offered to the idol , but the person who was under an obligation to the idol to offer food did not do so , and the servant brought a suit against him for damages, it was held that the defendant was under no legal obligation to supply food to the temples servant , and though his omission to supply food to the idol might involve a loss to the plaintiffs , it was damnum sine injuria , and could not entitle the plaintiffs to maintain a suit.3

Damage to wall by water The defendant built two pacca walls on his land on two
sides of his house as a result of which water flowing through the lane belonging to the defendant and situated between the defendants and plaintiffs houses damaged the walls of plaintiff.The plaintiff had not acquired any right of easement.It was held that defendant by building the wall on his land had not in any way violated the plaintiffs right , that this was a case of damnum sine injuriaand that , therefore , no right of action accrued to the plaintiff. 1

Loss of one academic year A student was wrongly detained for shortage of
attendance by principal on a misconstruction of the relevant regulation and thereby the student suffered the loss of one year. In a suit of damages it was held that the suit was not maintainable as the misconstruction of the regulation did not amount to a tort. In Vishnu Datt v. Board of H.S. & Intermediate Education ,U.P., Vishnu Datt ,an intermediate student , was detained for shortage of attendance,His detention was found by the court to be illegal as the attendance registers of the college were not maintained according to the regulation of the Board.As a consequence of the detention he lost one year.His action to claim compensation for the loss was not allowed as the plaintiffs claim did not fall under any of the heads recognised in common law, and moreover, the statutory provision did not provide for any compensation in the circumstances above.

CONCLUSION
As already seen, there are torts which are not actionable per se.In these cases what is violated is a qualified right as distinguished from an absolute right in the sense that actual damage is an ingredient of the tort and injury and wrong is complete only when it is accompanied by actual damage. Such damage is called variously ,express loss ,particular damage, damage in fact, special or particular loss. It is worth mentioning that through this project the fact that Law does not necessarily come handy to all who have incurred injury but is definitely a boon to those who have incurred legal damage.

BIBLIOGRAPHY Law of Torts, Ratanlal Dhirajlal Law of Torts, Bhangia The Doctrine of Damnum Absque Injuria, E Weeks