Explain as to when
a master is held responsible for the tort of his servant? (Vicarious Liability)
Introduction:
Doctrine that imposes the
responsibility upon one person for the failure of another, with whom the person
has a special relationship such as Parent and Child, employer
and employee, or owner of vehicle and driver to exercise such care as a
reasonably prudent person would use under similar circumstances.
Respondent Superior:-
The doctrine of respondent superior (Latin for
"let the master answer") is based on the employer-employee
relationship. The doctrine makes the employer responsible for a lack of care on
the part of an employee in relation to those to whom the employer owes a duty
of care. For respondent superior to apply, the employee's negligence must occur
within the scope of her employment.
The employer is charged with legal responsibility
for the negligence of the employee because the employee is held to be an agent
of the employer. If a negligent act is committed by an employee acting within
the general scope of her or his employment, the employer will be held liable
for damages. For example, if the driver of a gasoline delivery truck runs a red
light on the way to a gas station and strikes another car, causing injury, the
gasoline delivery company will be responsible for the damages if the driver is
found to be negligent. Because the company will automatically be found liable
if the driver is negligent, respondent superior is a form of Strict Liability.
Master and Servant:
A servant is a person who
voluntarily agrees weather for wages or not to subject him at all times during
the period of services to the lawful orders and directions of another in
respect of certain work to be done. A master is the person who legally entitled
to give such orders and to have them obeyed. The relation of master and servant
exists only between persons of whom the one has the order and control of the
work done by the other.
Principal on Which Vicarious Liability Is
Based:
1. QUI FACIT PER ALIUM FACIT
PER SE:
Means he who does an act
through another is deemed in law to do it himself.
2.
Respondent Superior:
Means let the superior be
responsible and has its origin in the legal presumptions that all acts done by
the servant in and about his master business and about his master’s business
are done by his master’s express or implied authority and are in truth the acts
of the master.
Four Kinds of Liability:
|
Master to 3rd
Person
|
|
Servant to 3rd
Person
|
|
Master to
Servant
|
|
Servant to
Master
|
|
Kinds of
Liability
|
Master’s Liability To 3rd Persons For
Servants Tort: (Tort committed in servant’s
course of employment)
A master is liable to
third person for every such wrong of his servant as is committed in the course
of his employment. Now when is a wrongful act said to be done in the course of
master’s employment? A wrongful act is said to be done “in the course of master
employment” if it is:
1. Authorized by the master
2. A wrongful and
unauthorized made of doing some act authorized by the master. Thus, although
the particular act which gives cause of action may not be authorized, still, if
the act is done in the course of employment which is authorized, the master is
liable.
A master becomes liable for the wrong done
by a servant in the course of. Employment in the following 6 ways:-
1. The wrong may be the
natural consequence of something done by a servant with ordinary care in
execution of the master’s specific orders.
2. The wrong may be due to
the servant’s want of care of negligence in caring on the work or business in
which he is employed.
3. The servant’s wrong may
consist in excess or mistaken execution of a lawful authority.
4. The wrong may be a wilful
wrong done on the master’s behalf and with the intention of serving his
purposes.
5. The wrong may be due to
the servant’s fraudulent act.
6. The wrong may be due to
the servant’s criminal act.
According to the case of Hyder vs. Barmah
shall ok co. (PLD 1951 Sind 24).
Where the driver of truck
was forbidden by master to allow anyone else to drive the truck in the course
of his employment but the driver allowed another to drive and the truck ran
into a camel cart killing the camel and injuring the driver of the cart besides
damaging the latter. It was held that the master was liable for the negligence
of his servant inasmuch as though the driver was guilty of his employment. The
driver owed a duty both to users of the road and to his master.
It case of a rash and
negligence driving by servant. The master is responsible in tort to third
person independent of any criminal liability incurred by employee by his rash
and negligent act.
According to the case of
Muhammad Saleem vs. Government of Azad Jumo & Kashmir the question of the
liability of the government for the wrongful acts of its servants arises only
when such acts are committed by its order or on its behalf being subsequently
ratified or adopted by it. Otherwise, the government is not liable for the tortuous
acts committed by its officials in the performance of duties imposed upon them
by legislatures. Where the govt. Officials being sued were not found to have
committed any wrongful act in the performance of duties and even they had. It
had not been established from the evidence adduced by the plaintiff that the
government took may steps to ratify them. The government cannot be held responsible
for the acts of such officials.
The master is always
vicariously for fault of servant committed during course of employment and
performance of his duty.
Problems:
1.
A passenger travelling in
a motor vehicle belonging to the government was killed as a result of
negligence of the driver discuss?
Government was liable to pay
damage.
2.
The defendant employed
his servant, a carpenter to make a signboard in a shed lent by the plaintiff. The
carpenter, in lighting his pipe while so engaged negligently set fire to the shed.
Is the defendant liable for los to the plaintiff?
The defendant was not
liable there was no negligence in making the signboard (The master’s business)
but only in smoking the pipe (the servant’s business).
3.
A porter whose duty is
among these things, to see that passengers do not get into wrong trains or
carriages (but not to remove them from a wrong carriage) roughly pulls a
passenger out of a compartment under the mistaken impression that he is in the
wrong train. Was the Railway Co. Liable?
The porter was acting
within his general authority and made the company liable.
4.
The driver of the
defendant company’s omnibus, wilfully and contrary to the company’s express
orders for bidding races with and obstructing other omnibuses, drove across the
road in order to obstruct the plaintiff’s omnibus and caused it to upset discuss
whether the defendant company is liable?
The company was liable
for the act of driving was no inconsistent with his employment when explained
by hi desire get before the other omnibus.
5.
The plaintiff a widow
owing a small cottage and some money due on a mortgage to the extent of 1,000
approached the manager of the defendants a firm solicitors, for advice as to how
to improve her income. He was advised by the manager to sell the cottage and
call in the money. The manager absconded with the moneys and the plaintiff sued
to recover them from the defendants. Are the defendants liable?
An employer would be
liable for all the frauds committed to the servant, whether for the benefit of
the employer or for his own benefit, so long as he was acting within the scope
of the employment entrusted to him.
6.
The driver of the
defendant’s omnibus allowed the conductor to drive the omnibus and in doing so
the conductor injured the plaintiff. It was held that though the defendant was
not liable for the conductor’s negligence, yet he would be liable for the
driver’s act in wrongfully delegating his duties to the conductor. Discuss?
In this case the driver
was sitting by the side of the conductor and so it was held to be an
unauthorized mode or method of doing the authorized thing viz. the driving.
-------------------------------------------------------
Define and
difference between damage and damages? Describe their kind briefly.
Introduction:
Damages are legal or
judicial remedy in the law of tort. The court may grant damages to injured party.
Damages in law of tort are usual remedy it is the money compensation which is
awarded to the plaintiff after proof of commission of tort against him by the
defendant. Monetary compensation is
awarded by a court in a civil action to an individual, who has been injured
through the wrongful conduct of another party.
Damages attempt to measure in financial terms the extent of harm a
plaintiff has suffered because of a defendant's actions. Damages are
distinguishable from costs, which are the expenses incurred as a result of
bringing a lawsuit and which the court may order the losing party to pay.
Damages also differ from the verdict, which is the final decision issued by a
jury.
Meaning:-
Damages are the
compensation in the form of money.
Definition of Damages:
Frank Gahan:
Damages are the sum of
money which a person wronged is entitled to receive from the wrong does as
compensation for the wrong.
Damage:
Legal damage or damage
that constitutes liability in tort is neither identical with actual damage nor
does it necessarily mean any pecuniary loss. Every invasion of a person’s legal
right or unauthorized interference with his property imports legal damage that
is although the injured person may not suffer any pecuniary loss by the
wrongful act of the defendant yet if it is shown that there was a violation of
some legal right the law will presume damage. This is known as “legal damage”.
Damages:
Damages are the pecuniary
satisfaction which a plaintiff may obtain by success in an action. Only those
damages can be recovered which are the “direct” consequences of a wrongful act.
In law, damages are an
award, typically of money, to be
paid to a person as compensation for loss or injury. The rules for damages can
and frequently do vary based on the type of claim which is presented (e.g., breach
of contract versus a tort claim).
Damage and Damages:
Damage and damages are
not equivalent terms. Damages are the compensation in the form of a sum of
money which the court awards for every injury but the damage which every injury
imports is that which is supposed to be compensated by award of damages.
Damage Due to Balloon Descent:
Where the defendant a
balloonist came down in the plaintiffs garden where by a crowd of people broke
into the garden and trod down vegetables and flowers the defendant’s descent
was considered to be a trespass and he was held liable for the damage done by
the balloon and also by the crowd.
Suit for Damages:
Plaintiff’s plea was that
while they were offering prayers in village mosque, defendants had defamed them
by announcing that they had become Ahmadi’s and thus ceased to be Muslims.
Because of such remarks plaintiffs were turned out from the mosque and people
raised slogans against them that they were Kafir. Suit was declared by trial
court and decree was up held up to the high court. Defendant’s contention is that
the plaintiffs could not establish through evidence that allegations levelled
by defendants against them were incorrect or led to their disrepute. Findings
of fact on the point had however, throughout been recorded against the
defendants. No case was thus made out for interference. Leave to appeal was
refused.
Kinds of Damages:
Damages are divided into different
categories:
|
Kinds of Damages
|
|
Contemptuous
|
|
Nominal
|
|
General & Special
|
|
Prospective & Continuing
|
|
Substantial
|
|
Exemplary
|
|
Treble Damages
|
|
Compensatory/Expectation
|
|
Speculative Damages
|
|
Liquidated Damages
|
Contemptuous or “Ignominious” Damages:
They are awarded where
technically a legal wrong is committed but where the circumstances disclosed
are such that the court feels that no action should have been brought. They are
awarded usually in actions of defamation. Where the court finds that the
defendant is in fault, but the plaintiff’s conduct and character are such that
he does not deserve to be compensated the court, in order the vindicate the
law, grants damages but at the same time reduces them to such a small or
contemptuous amount as to indicate its disapproval of the plaintiff’s claim or
conduct. In such cases, a farthing in English law may sometimes be awarded.
Contemptuous damages are also called “Ignominious Damages”.
Nominal Damages:
Nominal damages are generally recoverable by a
plaintiff who successfully establishes that he or she has suffered an injury
caused by the wrongful conduct of a defendant, but cannot offer proof of a loss
that can be compensated. For example, an injured plaintiff who proves that a
defendant's actions caused the injury but fails to submit medical records to
show the extent of the injury may be awarded only nominal damages. The amount
awarded is generally a small, symbolic sum, such as one dollar, although in
some jurisdictions it may equal the costs of bringing the lawsuit.
Nominal damages are
awarded by the court to the plaintiff not by way of compensation but by way of
a recognition of some legal right of his which the defendant has infringed e.g.
trespass invasion of a right of easement etc.
Substantial/Real Damages:
They are a sum of money
which is awarded to the plaintiff as a fair and equitable compensation for the
injury suffered by him. They are also called “Ordinary” or “Compensatory”
damages. Such damages are awarded in a great majority of actions in tort.
Exemplary/Punitive Damages:
Punitive damages, also known as exemplary damages, may be
awarded to a plaintiff in addition to compensatory damages when a defendant's
conduct is particularly wilful, wanton, malicious, vindictive, or oppressive.
Punitive damages are awarded not as compensation, but to punish the wrongdoer
and to act as a deterrent to others who might engage in similar conduct.
These are awarded in
cases where there has been great injury by reason of aggravating circumstances
accompanying the wrong. A heavy amount is awarded as the expressions of
indignation at the conduct of the defendant wherever he has shown a conscious
disregard of the plaintiff’s rights. Thus exemplary damages may be obtained in
cases of seduction of a man’s daughter with deliberate fraud or of grass
defamation actuated by jealousy.
General Damages:
General damages, sometimes styled hedonic damages, compensate the claimant for the non-monetary aspects of the specific
harm suffered. This is usually termed 'pain, suffering and loss of amenity'.
Examples of this include physical or emotional pain and suffering, loss of
companionship, loss of consortium, disfigurement, loss of reputation, loss or
impairment of mental or physical capacity, loss of enjoyment of life, etc. This is not easily quantifiable, and
depends on the individual circumstances of the claimant. Judges in the United
Kingdom base the award on damages awarded in similar previous cases.
General damages are generally awarded only in claims brought by
individuals, when they have suffered personal harm. Examples would be personal
injury (following the tort of negligence by the defendant), or the tort of
defamation.
Special Damages:
Special damages compensate the claimant for the quantifiable
monetary losses suffered by the plaintiff.
Prospective and Continuing Damages:
Damages resulting from
the same cause of action must be recovered once for all. More than one action
will not lie on the same cause of action. If “A” beats “B” and breaks B’s arm
and rib. B must sue for injury to both arm and rib. He cannot split up his
actions into two one for damage to arm and then another for damages to the rib.
Damages when given are taken to embrace all the injurious as know which may
arises here after as well as those which have arisen, so that right of action
is satisfied by one recovery.
Speculative Damages:
Speculative damages are damages
that have not yet occurred, but the plaintiff expects them to. Typically, these
damages cannot be recovered unless the plaintiff can prove that they are
reasonably likely to occur.
Treble Damages:
In some situations, where provided by statute,
treble damages may be awarded. In such situations, a statute will authorize a
judge to multiply the amount of monetary damages awarded by a jury by three,
and to order that a plaintiff receive the tripled amount.
Compensatory/Expectation Damages:
With respect to compensatory damages, a defendant is liable
to a plaintiff for all the natural and direct consequences of the defendant's
wrongful act. Remote consequences of a defendant's act or omission cannot form
the basis for an award of compensatory damages.
Consequential damages, a type of compensatory damages, may
be awarded when the loss suffered by a plaintiff is not caused directly or
immediately by the wrongful conduct of a defendant, but results from the
defendant's action instead. For example, if a defendant carried a ladder and
negligently walked into a plaintiff who was a professional model, injuring the
plaintiff's face, the plaintiff could recover consequential damages for the
loss of income resulting from the injury. These consequential damages are based
on the resulting harm to the plaintiff's career. They are not based on the
injury itself, which was the direct result of the defendant's conduct.
The measure of compensatory damages must be real and
tangible, although it can be difficult to fix the amount with certainty,
especially in cases involving claims such as pain and suffering or emotional
distress. In assessing the amount of compensatory damages to be awarded, a Trier
of fact (the jury or, if no jury exists, the judge) must exercise good judgment
and common sense, based on general experience and knowledge of economics and
social affairs. Within these broad guidelines, the jury or judge has wide
discretion to award damages in whatever amount is deemed appropriate, so long
as the amount is supported by the evidence in the case.
Liquidated
Damages:
Liquidated Damages constitute compensation agreed
upon by the parties entering into a contract, to be paid by a party who breaches
the contract to a non breaching party. Liquidated damages may be used when it
would be difficult to prove the actual harm or loss caused by a breach. The
amount of liquidated damages must represent a reasonable estimate of the actual
damages that a breach would cause. A contract term fixing unreasonably large or
disproportionate liquidated damages may be void because it constitutes a
penalty, or punishment for default. Furthermore, if it appears that the parties
have made no attempt to calculate the amount of actual damages that might be
sustained in the event of a breach, a liquidated damages provision will be
deemed unenforceable. In determining whether a particular contract provision
constitutes liquidated damages or an unenforceable penalty, a court will look
to the intention of the parties, even if the terms liquidated
damages and penalty are specifically used and defined in
the contract.
Conclusion/Crux:
Damages is the pecuniary compensation which is
granted by the court to a person for any injury which he has sustained by the
wrongful act of another. The main object of the damages in law of tort is
compensation of an injured person.
Define negligence
its kinds and describe its defences?
Introduction:
Negligence is the breach
of duty to take care. It is carelessness in a matter in which carefulness is
made obligatory by law. It essentially consists in the mental attitude of undue
indifference with respect is one’s conduct and its consequences wherever in
person is under a duty to take care, he is bound to take that amount of care
which is considered reasonable under the circumstances.
Meaning:
Two meaning are ascribed
to the word “Negligence” in the law of tort.
1. An independent tort.
2. A made of committing
certain tort e.g. trespass, nuisance.
Thus “Negligence” may
mean mental element in the tortuous liability or it may mean independent tort.
Definition:
The term “Negligence” has
been defined by different jurists.
Salmond: “Negligence is the state of mind of
undue indifference towards one’s conduct and consequences”.
Wiles: “Negligence is the absence of such
care as it was the duty of the defendant to use”.
Baron Alderson: According to Baron
Alderson “Negligence is the omission to do something which a reasonable man
guided upon those considerations which ordinarily regulate the conduct of human
affairs, would not do or doing something which a prudent or reasonable man
would not do”.
Auston: “Negligence is the
breach by omission of a positive duty”.
Clark: “Negligence is the care
under the circumstances, it is the legal duty of a person to take, and it is no
sense a positive idea and has nothing to do with a state of mind”.
Illustration:
A has been entertaining
his friend B and C at a dinner. B has to catch a train and C volunteers to
drive him to the station in as car which A lends for the purpose on the way to
the station the car mounts the pavement and crashes into the shop window of D,
breaking the glass and inflicting cut upon B. B and D have right against C to
claim damages from him for his negligence in driving.
Standard or Degree of Care:
In the above definition
it is assumed that standard or degree of care is to be measured by the standard
of a reasonable or prudent man in the particular situation. The amount of care
may vary to the greatest extent while standard itself remains the same.
The prudent man is the
man who has acquired the skill to do a act which he undertakes. If a man has
not acquired the skill to do a particular act he undertakes then he is
imprudent, however careful he may be and however great his skill in other
things.
Kinds of Negligence: (Intentional+ Not
Intentional)
|
Advertent Negligence
|
|
In Advertent Negligence
|
|
Kinds of Negligence
|
Advertent Negligence:
It is commonly called wilful
negligence or recklessness. The harm done is foreseen as probable but is not
willed e.g. rash driving on a road.
Inadvertent Negligence:
It is also called simple
negligence. In this case the harm done is neither foreseen nor willed, e.g. drunkard
is walking along the road and he breaks window of a shop as the knocks against
the same.
Essentials of a Suit for Negligence:
In an action for
negligence the plaintiff has to prove the following essentials.
1. That the defendant owed a
duty of care.
2. That the defendant owed a
duty of care towards the plaintiff.
3. That the defendant either
committed a breach of that duty or failed to perform that duty.
4. That there was
consequential damage to the plaintiff.
5. Damage was caused due to
breach of duty.
Defences:
I was need that if the
both parties are equally to blame and the accident is the result of their joint
negligence the plaintiff cannot recover damages.
Situation Cases of Contributory Negligence:
There can be three
situations in cases:
i.
Where
defendant is proved completely negligent.
ii.
Where
plaintiff is negligent.
iii.
Where
plaintiff & defendant are both involve in negligence.
Onus of Proof:
Always on the defendant
side, he has to prove the negligence of the plaintiff.
Exceptions:
a)
Where Rightful Acts Are
Assumed:
Where the plaintiff was
not bound to take care as the defendant contends but has a right to assume that
the defendant had done all things rightly.
b)
Where Defendant Had Last
Opportunity: To
avoid the accident by reasonable care.
c)
Statutory Duty:
Case involving breach of
statutory duty on the part of the defendant is no defence in contributory
negligence.
d)
Alternative Danger:
Cases where the negligence
of defendant creates a dilemma, difficult, doubtful choice, awkward position,
puzzling, alternative danger to the plaintiff and he takes wrong action. The
contributory negligence will not be defence.
e)
Maritime Law:
The doctrine of the
contributory negligence does not apply to the maritime law administered in the
court and admiralty jurisdictions.
f)
Children:
When plaintiff is
children the contributory negligence is no defence.
In short contributory
negligence is defence in tort but is not applicable to the minor and care of
involving breach of a statutory duty.
Distinction
between contributory Negligence and Negligence:
|
Points
|
Contributory Negligence
|
Negligence
|
|
As to
Nature
|
No
Tort/Defence
|
Tort
|
|
As to
One’s Proof
|
On
Defendant
|
On
Plaintiff
|
|
As to
Duty
|
Plaintiff
owes Duty
|
Defendant
is bound to care
|
|
As to
Breach Of Duty
|
Does not
depends on
|
Depends
|
Contributory Negligence:
Introduction:
Contributory negligence
is a special defence available in an action under law of tort. So contributory
negligence is not a tort. It is just a defence available to the defendant.
Contributory negligence expresses that the person who suffered damage is also
guilty of some negligence and has contributed towards the damage.
Meaning:
Contributory negligence
of one person is not avoiding consequences arising from negligence of another
person when mean and opportunity are afforded to do so.
Lord Halsberg:
This doctrine of
contributory negligence is merely a special application of the maximum. “That
where both parties are equal to blame, neither can hold the other liable. IN PARI PELICTO
POTIREST CONOITO DEFENDANTIS where both parties are equalled to blame, condition
of defendant is better”.
Contributory Negligence as a Defence:
Contributory negligence
is a complete defence for the defendant and it risks upon the view that though
the defendant has in fact been negligent. Yet the plaintiff has by his own carelessness
served the casual connection between. The defendant negligence and the accident
which was occurred and that the defendant’s negligence accordingly is not the
true proximate cause of the injury one who has his own negligence contributed
to the injury of which he complains cannot maintain action against another in
respect of it.
Standard of Care:
In order to decide
whether there has been a breach of duty. It is necessary to keep in mind the
standard of care which law requires from a person who owes a duty to take care.
The standard of care which law requires is that of a reasonable care according
to circumstances and absence of which is culpable negligence.
Illustration:-It is duty of every
banker to make sure that signatures on cheque are genuine. If a banker, fails
to perform his duty before allowing the encashment of cheque. It will be liable
for negligence and banker will be negligent.
Consequent Damage to the Plaintiff:
The last essential
requires for the tort of negligence is that the damage caused to the plaintiff
was the result of the beach of the duty and must not be to remote a consequence
of it. The burden rests on the plaintiff or appellant to prove on a balance of
probabilities, a casual connection between his injury and defendant negligence.
It is not necessary however to prove that the respondent’s negligence was the
only case of injury.
|
No Duty
|
|
No Damage
|
|
Nothing was breached
|
|
To Remote
|
|
Vis Major or
Acts of God
|
|
Inevitable
Accident
|
|
Contributory
Negligence
|
|
3rd
Part or Stranger
|
|
Defences
|
Following are the defences open to a
defendant in an action for negligence:
1. No duty.
2. No damage.
3. Nothing was breached.
4. Too remote.
5. Vis Major or acts of God.
6. Inevitable accident.
7. Contributory negligence.
8. Third Party or stranger.
No Duty:-
The first defence in an
action for negligence is that there is no such duty to take care as is implied as the basis for action.
No Damage:- The second defence is that the plaintiff suffered no
damage.
Nothing is breached:- According to this defence, no duty impose by law on the
defendant was breached.
Too Remote:
The fourth defence is
that the damage complained of is too remote.
Vis Major or Act or God:
Vis major or act of God
is such a direct and irresistible act of nature as could not by any amount of
human foresight have been foreseen or if foreseen could not by any amount of
human and skill have been resisted e.g. storm, tempest, lighting, Extraordinary
fall of rain etc.
Inevitable Accident:
The sixth defence is an
action for negligence, that of inevitable accident or sudden accident which
happens because of misfortune.
Contributory Negligence:
This defence says that
the plaintiff is equally negligence or car with ordinary care have avoid
injury.
Third Party:-That not the negligence
of the defendant but the act of third party’s intervening caused injury.
Conclusion/Crux:
Contributory negligence
is a complete defence in tort of negligence. It is not applicable to the minor
and cases of involving breach of statutory duty. The onus of prove on the
defendant in the contributory negligence.
No comments:
Post a Comment