Question

Research a business tort case. Discuss for the class the tort at issue. Identify each element of the tort and apply facts from the case to prove or disprove each element.

Answer 1

Tort law determines whether a person should be held legally accountable for an injury against another, as well as what type of compensation the injured party is entitled to.

The four elements to every successful tort case are: duty, breach of duty, causation and injury. For a tort claim to be well-founded, there must have been a breach of duty made by the defendant against the plaintiff, which resulted in an injury. Tort lawsuits are the biggest category of civil litigation, and can encompass a wide range of personal injury cases - however, there are three main types: intentional torts, negligence, and strict liability.

An intentional tort is when an individual or entity purposely engages in conduct that causes injury or damage to another. For example, striking someone in a fight would be consider an intentional act that would fall under the tort of battery; whereas accidentally hitting another person would not qualify as “intentional” because there was no intent to strike the individual (…however, this act may be considered negligent if the person hit was injured).

Although it may seem like an intentional tort can be categorized as a criminal case, there are important differences between the two. A crime can be defined as a wrongful act that injures or interferes with the interests of society.

In comparison, intentional torts are wrongful acts that injure or interfere with an individual’s well-being or property. While criminal charges are brought by the government and can result in a fine or jail sentence, tort charges are filed by a plaintiff seeking monetary compensation for damages that the defendant must pay if they lose. Sometimes a wrongful act may be both a criminal and tort case.

Examples of Intentional Torts

AssaultBatteryFalse imprisonmentConversionIntentional infliction of emotional distressFraud/deceitTrespass (to land and property)Defamation

Negligence

There is a specific code of conduct which every person is expected to follow and a legal duty of the public to act a certain way in order to reduce the risk of harm to others.

Failure to adhere to these standards is known as negligence.

Negligence is by far the most common type of tort.

Unlike intentional torts, negligence cases do not involve deliberate actions, but instead are when an individual or entity is careless and fails to provide a duty owed to another person.

The most common examples of negligence torts are cases of slip and fall, which occur when a property owner fails to act as a reasonable person would, thus resulting in harm to the visitor or customer.

Examples of Negligence Torts

Slip and fall accidentsCar accidentsTruck accidentsMotorcycle accidentsPedestrian accidentsBicycle accidentsMedical malpractice

Strict Liability

Last are torts involving strict liability. Strict, or “absolute,” liability applies to cases where responsibility for an injury can be imposed on the wrongdoer without proof of negligence or direct fault.

What matters is that an action occurred and resulted in the eventual injury of another person.

Defective product cases are prime examples of when liability is maintained despite intent.

In lawsuits such as these, the injured consumer only has to establish that their injuries were directly caused by the product in question in order to have the law on their side. The fact that the company did not “intend” for the consumer to be injured is not a factor.

Examples of Strict Liability Torts

Defective products (Product Liability)Animal attacks (dog bite lawsuits)Abnormally dangerous activities

Before we can proceed to evaluate the circumstances in which a defence can be used in any tort case it is absolutely essential to understand what the word “defence” means. The word “defence” bears several meanings in the tort context and a great deal of confusion has been spawned of a general failure by courts and commentators to make their intended meaning clear. Although conventionally the word defence is used to refer to those arguments which when used persuades the court to conclude that the defendant in a case is not guilty. So, they basically include “absent element defences” which are denials of the components of the tort that the plaintiff has allegedly committed. Now this can be done in two ways. First the defendant can deny that the tort was committed or second, the defendant can deny on the grounds of legal sufficiency in the allegations of the plaintiff, even if a tort has been committed.

Defence can also be used in a stricter sense in the case of “affirmative defences” where the result in a verdict is for the defendant even if all of the ingredients of the tort that the plaintiff contends were committed against him are present. Affirmative defences include absolute privilege, abuse of process, arrest, distress, honest opinion, immunity, limitation bars, necessity, qualified privilege, recapture of land or chattels, res judicata and self-defence. A defendant who relies on any of these rules seeks to avoid liability not by denying the plaintiff’s allegations but by going around them.

Then we need to discuss the “remedy restricting rules”. The word defence when used in relation to these rules encompasses the principles that limit the relief a plaintiff is entitled to. Some remedy restricting rules cut back the plaintiff’s entitlement to damages, such as the provision for apportionment for contributory negligence and the doctrine of mitigation of damage. Others prevent the plaintiff from enjoying particular remedies completely. Examples of the latter type of remedy restricting rule include the doctrines of laches and acquiescence. The law favours those who are vigilant and not those who slumber. However it is essential to note that in this case the defendant is not absolved of liability like the previous two cases.

Another very important point to be discussed while talking about defences in any law is the concept of “onus of proof”. Historically speaking, the evolution of that particular law is very important in that aspect. When in any law the burden of proof shifts from one party to another, the use of that principle of law as a defence is affected. Suppose that X is an affirmative defence to a given tort. If the legislature enacts a provision that states that the plaintiff bears the onus of disproving X, it would be stripped of its status as a defence.

These are the four fundamental concepts of defence and the different ways in which it is to be construed. Now we shall see some of the commonly known and recognised defences to any tort. The defences discussed in detail are:

ConsentWhen plaintiff is the wrongdoerInevitable accidentAct of GodAct in relation to Private DefenceNecessityAct done in respect to statutory authority

In the discussion of each of these defences I have first given a small introduction of the defence, followed by the different aspects and conditions required to be fulfilled to successfully use the defence and then given a brief summary of some of the famous cases relating to that defence.

CONSENT

When a tort is committed, meaning that a defendant’s actions interfered with the plaintiff’s person or property, a plaintiff’s consent will excuse the defendant of the wrongdoing. Although a defendant’s conduct may be considered immoral, or harmful, if the plaintiff allows these interferences to occur, then the defendant is not considered to have committed a tort. Consent occurs when a plaintiff displays a willingness to participate in the defendant’s conduct. This consent can be express or implied. One of the most widely stated examples in this sense is that of a person who is hit by the ball while watching a match in a cricket stadium. The general understanding here is that when the person bought the ticket to watch the match itself he agreed or consented to suffer any such damage or face any such risks and so the players or stadium authorities are absolved from any sort of liability arising out of such an accident.

The defendant may infer consent from the plaintiff’s actions the way any reasonable man would. In some cases, silence and inaction may manifest consent when it is reasonable to assume that a person would speak or act if he objected to the defendant’s actions.

Suppose there is a pile of old things that you have kept aside to dispose or give away. Now if some worker takes an old painting from the pile in your presence and you don’t have any problem with that then, you cannot later claim the painting and it is reasonable to assume that the servant obtained your consent before taking it.

Also, if certain behaviour was previously consented in the past, the defendant may continue to regard this behaviour as acceptable until he is told otherwise. Suppose A owns a library and B his friend often comes and borrows books without necessarily informing A always and A too doesn’t have any objections to this, then B can assume that he has A’s consent always and can continue books unless expressly told not to do so by A.

Consent may not always excuse a defendant of liability. Sometimes consent is ineffective under certain conditions. If the plaintiff lacks the capacity to consent, is coerced into consenting, or consents under false pretences, the consent is not valid as a defence to the tort. Incapacity to give consent may arise due to the factors of insanity, intoxication or infancy. It may also arise due to temporary abnormalities like someone under the effect of a drug or alcohol or someone who is in a very stressful situation, or due to a permanent mental illness or disorder. This incapacity must interfere with the plaintiff’s ability to weigh the benefits and consequences of the defendant’s suggested conduct. A person suffering from bouts of insanity cannot be expected to be able to give proper consent and anyone who takes advantage of that fact and puts him under any risk of injury shall not have the defence of consent.

A case with relation to incapacity to give consent is that of Gillick v West Norfolk & Wisbeck Area Health Authority [i]. Mrs Gillick was a mother with five daughters under the age of 16. She sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. The court refused to give such a declaration. Lord Fraser in his judgement said that:

It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age. Thus, we can see how the ability to give consent is determined in different cases with respect to the facts in the given situation.

Consent is usually expressed in law through the Latin phrase “Volenti non fit injuria”. A direct translation of the phrase is, ‘to one who volunteers, no harm is done’. It is often stated that the claimant consents to the risk of harm, however, the defence of volenti is much more limited in its application and should not be confused with the defence of consent in relation to trespass. The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances, to absolve the defendant of all legal consequences of their actions.

A corollary of this principle is “Scienti non fit injuria” which means that only knowledge of the risk is not enough to claim defence there must be acceptance to undergo the resultants of the risk undertaken. There had to be consent and mere knowledge is not sufficient.

In Khimji V. Tanga Mombasa Transport Co. Ltd.[ii] the plaintiffs were the personal representatives of a deceased who met his death while travelling as a passenger in the defendant’s bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus drowned with all the passengers aboard. It was held that the plaintiff’s action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.

For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff and there was no undue influence, misrepresentation or fraud involved.

In the case of R v. Williams[iii] the defendant was a singing coach. He told one of his pupils that he was performing an act to open her air passages to improve her singing but he was actually having sexual intercourse with her. It was held that her consent was vitiated by fraud. This case has been used to illustrate the validity of a consent which has been obtained by unfair means.

In another case[iv] the claimant sued his employers for injuries sustained while in the course of working in their employment. He was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the claimant was working. The claimant was injured when a stone fell out of the crane and struck him on the head. It was said that the claimant may have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages.

For a claim of volenti it is necessary that there is an agreement between the parties which may be express or implied. An implied agreement may exist where the claimant’s action in the circumstances demonstrates a willingness to accept not only the physical risks but also the legal risks. In Nettleship v. Weston[v], Lord Denning said:

“Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him”.

Also the plaintiff should have complete knowledge of the full nature and extent of risk involved before giving consent. Lord Diplock in the case Wooldridge v. Sumner[vi] pointed out that, “The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk… and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran”.

The conventional understanding about the plea of volenti non fit injuria is that it is an affirmative defence to liability arising in the tort of negligence.[vii] However, Stephen Sugarman demonstrates that pleading the volenti maxim is simply a misleading way of asserting that one of the elements of the action in negligence is absent. The decision of the English Court of Appeal in Murray v Harringay Arena Ltd [viii]can be used to further prove this point. In the given case the plaintiff, who was six years old at the time, was injured by an errant puck while watching an ice hockey match. He failed in his bid to recover damages from the owner of the rink because he was found to have assumed the risk of injury by attending the match.The plaintiff failed not because he consented to the risk of injury (which was obviously impossible given his age) but because the rink owner was not negligent with respect to the plaintiff’s safety. The facts coalesce to reveal the absence of fault on the part of the defendant which is why the defence of consent was successful here.

This principle also applies to injuries caused during contact sports. A participant in sporting events is taken to consent to the risk of injury which occurs in the course of the ordinary performance of the sport. But to use this defence it is necessary to show that the rules of the sport were followed and that the players did not cause more harm than is reasonable in a game. In Blake v Galloway[ix] the plaintiff and defendant were taking a break from music practice and became involved in “high-spirited and good natured horseplay”. The plaintiff threw and struck the defendant with a piece of bark. The defendant, with no intention to cause harm, threw a piece back and struck the plaintiff in the eye, who suffered significant injury. The judges held that by participating in the game, the plaintiff must be taken to have impliedly consented to the risk of a blow on any part of his body, provided that the offending missile was thrown more or less in accordance with the tacit understanding or conventions of the game. If there are inherent risks in an activity, and someone consents to participating in the activity, they are held to have impliedly consented to being exposed to such risks.

In the medical field the importance of consent is very high. The element of consent is one of the critical issues in medical treatment. The patient has a legal right to autonomy and self determination enshrined within Article 21 of the Indian Constitution. He can refuse treatment except in an emergency situation where the doctor need not get consent for treatment. The consent obtained should be legally valid. A doctor who treats without valid consent will be liable under the tort and criminal laws. The law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information. The patient may sue the medical practitioner in tort for trespass to person in case something goes amiss. Alternatively, the health professional may be sued for negligence. In certain extreme cases, there is a theoretical possibility of criminal prosecution for assault or battery.

WHEN PLAINTIFF IS THE WRONGDOER

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. So an unlawful act of the plaintiff itself might lead to a valid defence in torts. This maxim applies not only to tort law but also to contract, restitution, property and trusts. Where the maxim is successfully applied it acts as a complete bar on recovery. It is often referred to as the illegality defence, although it extends beyond illegal conduct to immoral conduct. This defence though taken very rarely has been in debate for a long time. The principle of “ex turpi causa non oritur action”, famously enunciated by Lord Mansfield as long ago as in the case of Holman v. Johnson[x]. In the case of Ashtonv. Turner and another[xi], the claimant was injured when the defendant crashed the car in which he was a passenger. The crash occurred after they both had committed a burglary and the defendant, who had been drinking, was driving negligently in an attempt to escape. Justice Ewbank dismissed the claim holding that as a matter of public policy the law would not recognise a duty of care owed by one participant in a crime to another. He also added that even if there was a duty of care the claimant had willingly accepted the risk and knowingly sat in the car with the defendant. In Stone & Rolls[xii] a fraudster used a company of which he was the sole director and shareholder to commit a letter of credit fraud. Following the company’s insolvency, its liquidators, acting in the company’s name, sued its auditors in negligence for having failed to detect the fraud. The House of Lords held (by 3-2) that the claim was barred on the ground ex turpi causa, because the state of mind of the fraudster was to be attributed to the company, which was thus treated as the perpetrator of the fraud.

The law in Australia on the illegality defence as it applies in the negligence context was, until recently, more or less identical to that in England. However, this changed when, in Miller v Miller[xiii], the High Court of Australia held that joint and unilateral illegality cases should be governed by the same rule. That rule is that no duty of care will be owed to a plaintiff who was injured while committing an offence if recognising a duty would be inconsistent with the purpose of the criminal law statute that the plaintiff infringed.

This defence of ex turpi causa can be closely related to the legal maxims “jus ex injuria non oritur” which means that no right can arise out of a wrong and “Commodum Ex Injuria Sua Nemo Habere Debet” meaning that a wrongdoer should not be enabled by law to take any advantage from his actions. We have heard the common phrase that one who approached the courts must come with clean hands. The defence of illegality is close to this principle and works on the logic that when a person is doing a wrongful act he need not be helped by the state in getting damages as this would essentially be against public policy. In the case of National Coal Board v England Lord Porter[xiv] had expressly located the ex turpi causa maxim in a public policy rationale. Thus, wrongdoing on the part of the plaintiff would not necessarily preclude him from bringing a claim where the court could be satisfied that to provide redress for the plaintiff would not offend against policy. Considering the reliance on public policy in this principle another issue which arises is the validity of ex turpi causa as a defence in itself. Some legal jurists are of the opinion that instead of a defence it should act as a barrier to the claim. In doing so, the public policy rationale is strengthened through a refusal to recognise the validity of the claim in the first place. This logical conclusion can be arrived from the judgement in the case of Anderson v Cooke[xv] as well.

An important case which raised the questions of the defence of volenti non fit injuria and ex turpi causa was Pitts v Hunt.[xvi] After an evening of heavy drinking the unlicensed and uninsured owner of a motor-cycle drove the cycle on a public road in a reckless and dangerous manner which the plaintiff, as pillion passenger, was found to have actively encouraged. There was an accident in which the rider was killed and the plaintiff badly injured. In the plaintiff’s action in negligence, the judge dismissed the claim against the first defendant, the personal representative of the rider, on the ground that the rider owned the plaintiff no duty of care, by reason of the maxim ex turpi causa non oritur actio. He held, further, that although the plaintiff had clearly accepted the risk of negligence on the rider’s part, s.148(3) of the Road Traffic Act 1972 disentitled the first defendant from relying on the defence of volenti non fit injuria, and that the plaintiff was 100% contributorily negligent. The plaintiff appealed.

Lord Beldam said that it followed from the public policy underlying the Road Traffic Acts that the claim must fail, as if anyone else had been killed the facts would have amounted to manslaughter, not merely by gross negligence, but by the doing of a dangerous act either with the intention of frightening other road users or knowing, but for self-induced intoxication, that it was likely to do so. The judge’s decision on volenti was correct. Since s.1(1) of the Law Reform (Contributory Negligence) Act 1945 presupposed that before the section could apply there must have been fault by both parties, and liability then had to be apportioned, the judge’s finding of 100% contributory negligence was wrong in principle.

Justice Balcombe, concurring, said that in the circumstances the rider owed no duty of care to the plaintiff. Justice Dillon, also concurring, said that on the facts the plaintiff’s action arose directly ex turpi causa; it was not a case of merely incidental unlawful conduct.