Name: IBADULLAH SHAH

Roll no: BL-1465

Class: BA-LLB
Section: A
Subject: LAW OF TORT - I

FINAL EXAMINATION SPRING - 2020

Instructor: Ms. ROMANA AHMED

ANSWER. 1
DUTY OF CARE: In tort law, a duty of care is a legal obligation which is imposed on an
individual requiring adherence to a standard of reasonable care while performing any acts
that could foreseeably harm others. It is the first element that must be established to
proceed with an action in negligence. For example, a duty of care is owed by an accountant
in correctly preparing a customer’s tax returns, to minimize the chance of an IRS audit.
SOME DUTY OF CARE CATEGORIES INCLUDE:
• Manufacturer owe a duty of care to the Customer.
• Driver owe a duty of care to the passenger.
• Driver owe a duty of care to the other driver on the road.
• Lawyer owe a duty of care to the client
• Occupier or Owner of Premises owe a duty of care to the User or Visitor to Premises
(whether invited and sometimes even if they are trespassing).
• Doctor owe a duty of care to the patient.

THE COURT DECIDES WHETHER A DUTY OF CARE EXISTS OR NOT BY:

NEIGHBOUR PRINCIPLE:
According to Atkin, a general duty of care could be said to exist between two parties
under the ‘neighbour principle’, described in this key quote: “You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law, is my neighbour? The answer seems to be–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 into question.”

EXAMPLE CASE: OLD GATE ESTATES LTD V TOPLIS & HARDING & RUSSELL [1939]
FACTS: A block of flats was to be purchased by the promoters of the claimant’s company.
During the promotion of the company and before the company was formed, the claimant
(promoter) employed a member of the defendant’s firm to value the flats. The valuation
was too high because sums relating to the rates payable were incorrectly provided to the
valuer by the promoter. The company sought damages in respect of damages for negligent
valuation.
ISSUE: Whether a duty of care in negligence was owed to the company by the valuer despite
there being no contract between these parties, the contract existing between the
promoters and the valuer.
HELD: There was no duty of care owed to the company in these circumstances. There was
no claim in contract because the valuation had taken place before the company was
formed. There was also no duty of care owed to the company as a third party. The position
in Donoghue v Stevenson [1932] was limited to circumstances where the negligence at
issue created a risk to life, limb or health. It does not apply in the circumstances of this case.

ANNS TEST – TWO STAGE TEST:

Following few restrictions in ‘neighbour principle’, the law once again returned
towards the application of a universal principle, with Anns v Merton London Borough[1978]
establishing a two-part test similar to the one employed in Donoghue. The first part of
the Anns test essentially recreates the neighbour principle – a duty can be said to exist
where it is foreseeable that someone will be harmed as a result of negligence. The second
part, however, includes the caveat that the defense can argue against the existence of a
duty with reasons of policy. It should be noted that whilst Anns has been rejected by the
UK, it is still in use in a number of other commonwealth jurisdictions. The Anns Test was
rejected once again in favor of the test laid down in Caparo Industries v Dickman [1990]
test, which is the currently applicable test for establishing a duty of care.

EXAMPLE CASE: ANNS V MERTON LONDON BOROUGH COUNCIL [1978]

FACTS: The local authority approved building plans for a block of flats and the flats were
built later that year. However, by 1970 structural movement had begun to occur in the
properties causing cracking to the walls and other damage, causing the properties to
become dangerous. The claimant tenants in the flat began proceedings in 1972 in
negligence against the council on the basis that the council had failed to properly inspect
the building walls properly in order to ensure that the foundations were laid to the correct
depth shown in the plans.
ISSUE: There were two specific issues.
1. Whether the council owed a duty of care to the claimants in respect of the incorrect
depth of the foundations laid by the third-party builder.
2. Whether the claim was statute barred.
HELD:
1. It was held that the council may be liable in negligence, but in limited circumstances.
The relevant legislative provisions with regard to inspection did not place a duty on
the council to inspect the walls, but did allow it the power to, if it considered
inspection necessary. Therefore, failing to inspect would not render the council liable
unless it was considered that it had failed to properly exercise its discretion to
inspect and that they had failed to ensure proper compliance with building
regulations.  If inspections were carried out, the council retained discretion as to the
manner of the inspections. If this discretion was not genuinely exercised, the council
may be liable in negligence.
2. The claim was not statute barred, the limitation period running from the date at
which the dangerous state of the property became apparent.

CAPARO TEST – THREE STAGE TEST:

The Caparo test is made up of three stages, foreseeability, proximity and
justice/fairness.
• Foreseeability: This first stage revolves around whether it is foreseeable that the
defendant’s carelessness could cause damage to the claimant. A prime example of
foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad
Co [1928] 248 N.Y. 339. In the case, although it was possible to trace the claimant’s
injuries to the defendant’s negligence, in applying a test of foreseeability, the courts
found that it was not foreseeable that the claimant would be injured.
• Proximity: The second stage is based on whether there is a relationship
of proximity between the defendant and the claimant. This does not dictate that
there must be physical proximity, rather that there must be a connection between
the two. An example of proximity (or, rather, a lack of proximity) can be seen
in Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5 – members of
the general public coming across the aftermath of the Hillsborough disaster and
 suffering nervous shock as a result were held to not be owed a duty of care, because
the link between the defendants and claimants was held to be too distant.
• Justice/Fairness: The third and final stage of Caparo involves establishing whether it
would be fair, just and reasonable for the courts to find that the defendant owed a
duty of care to the claimant. Owing to the vague nature of this criteria, this stage can
be thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases
where public policy might dictate that it would be unreasonable for a duty of care to
be held to exist- Marc Rich & Co v Bishop Rock Marine Co Ltd[1995] UKHL.
So, if all three of these stages are passed, the case can be said to have satisfied
the Caparo test, and thus a duty of care can be said to exist.

ANSWER. 2

DEFENCES: Defendants may try to negate or reduce liability either by reference to their
own positive behaviour, or through pointing out the claimant’s own misdeeds. There are a
number of regularly resorted to defenses, and knowledge of these will be important in
dealing with problem questions. Some of these defenses will only reduce the award of
damages, and are thus referred to as ‘partial defenses’. Others will dispel all liability, and are
therefore known as ‘complete defenses’.

JUSTIFICATIONS/DEFENCES TO TORTS
1. CONTRIBUTORY NEGLIGENCE: In some common law jurisdictions, contributory
negligence defense is quite simply an argument that the claimant, through some
action or omission of their own, contributed manifestly to their own injuries, and
that this fact should be reflected in the awarded damages. Since it affects the
damages, rather than the verdict of the case itself, it is a partial defense.
The effect of a contributory negligence involves asking to what extent a
claimant contributed to their own injuries as a percentage, and then taking that
percentage off of his or her damages.
EXAMPLE CASE: DAVIES V SWAN MOTOR CO [1949]
FACTS: Davies had been standing on steps at the side of a dust lorry. He was
standing in a dangerous place. The lorry was travelling along a narrow road when a
bus tried to pass the lorry. Davies was unfortunately killed.
HELD: Davies was himself one-fifth responsible for the damage because of his
negligence in standing upon, or being upon, the side of the dust lorry. His damages
were accordingly reduced under the Law Reform (Contributory Negligence) Act
1945.
"When one is considering the question of contributory negligence, it is not
necessary to show that the negligence constituted a breach of duty to the
 Defendant. It is sufficient to show lack of reasonable care by the Plaintiff for his own
safety."

2. CONSENT/ASSUMPTION OF RISK: Consent is the Defense most often used in cases

involving Trespass to the person. Consent refers to situations in which the claimant
can be regarded as having consented to a risk which then manifests itself. This is
sometimes referred to via the Latin maxim volenti non fit injuria (to a volunteer,
injury is not done). Consent is a complete defense – if consent is found, a claim will
be defeated.
Consent defenses can be broken down into two categories:
1. In the first are situations of negligence where a claimant agrees that the
defendant will not be held liable for any injuries they might incur whilst
undertaking a particular activity.
2. In the second are where the claimant effectively tells a defendant to do
something.

EXAMPLE CASE: SMITH V BAKER & SONS [1891]

FACTS: The plaintiff was employed by a railway company to drill holes in a rock, near
a crane, operated by men employed by the railway company. The crane lifted stones
and at times swung them over the plaintiff’s head without warning. The plaintiff was
fully aware of the danger he was exposed to by working near the crane. One time, a
stone fell off the crane and injured the plaintiff. He sued his employers for
negligence under the now repealed Employers’ Liability Act 1880. The jury in the
county court ruled in favor of the plaintiff. The defendants appealed to the Court of
Appeal which reversed the decision of the county court. The plaintiff appealed to the
House of Lords.
ISSUE: Is the defense of volenti non fit injuria applicable to cases where an employee
whose occupation is not in itself dangerous suffers injury from an activity carried out
in another department of which he is fully aware but nevertheless continues to
work?
HELD: The appeal was allowed.
1. The mere fact that the plaintiff undertook or continued employment with the
full knowledge that there is danger arising out of another activity in the
workplace, is not enough to show that maxim volenti non fit injuria is
applicable.
2. The question of whether the plaintiff has undertaken such a risk is a one of
fact, not of law. The evidence in the present case shows that the plaintiff did
not voluntarily undertook the risk of injury. This is so in common law and in
cases arising under the Employers’ Liability Act 1880.
3. SELF DEFENCE: In criminal and tort law, it refers to a defendant’s right to use
physical force to defend oneself from bodily harm. It is commonly referred to as a
justifiable defense. The amount of force used must be reasonable and match the
plaintiff’s force. If the plaintiff threw a punch at the defendant, the defendant could
block the plaintiff’s punch with a punch of their own. A defendant can claim this
defense when sued for battery or assault. It is also used in false imprisonment cases
 where a defendant was bound to a certain area without their consent by the
plaintiff.
In common law the defense of self-defense operates in three spheres. It
allows a person to use reasonable force to:
1. Defend himself from an attack.
2. Prevent an attack on another person.
3. Defend his property.
EXAMPLE CASE: R V SCARLETT [1994]
FACTS: The defendant, a publican, sought to eject a drunk person from his premises.
The drunk person made it clear that he was not going to leave voluntarily. The
defendant believed that the deceased was about to strike him and so he put his arms
around the drunk person’s body, pinning his arms to his sides. He took him outside
and placed him against the wall of the lobby. The drunk person fell backwards down
a flight of five steps, struck his head and died.
HELD: The jury were directed that if they were satisfied that the defendant had used
more force than was necessary in the bar and that had caused the deceased to fall
and strike his head he was guilty of manslaughter. The defendant was convicted and
appealed on the ground that he honestly (albeit unreasonably) believed the amount
of force he had used to evict the drunken man from his premises was necessary. In
allowing the appeal, Beldam LJ gave the following direction for juries:
 “They ought not to convict him unless they are satisfied that the degree of
force used was plainly more than was called for by the circumstances as he
believed them to be and, provided he believed the circumstances called for
the degree of force used, he was not to be convicted even if his belief was
unreasonable.”
4. DEFENCE OF PROPERTY: In common law, as a defendant being sued for
an intentional tort like battery, you may be able to argue that although you did harm
the plaintiff, you did so in order to prevent your property from being invaded (in the
case of real estate, like your home), or taken (as with personal property, like your
purse). For example, if an intruder is attempting to break in through the window of
your bedroom and you hit him with a bat, he might try to sue you for battery. Here,
among other potential defenses, you could argue that you shouldn’t be held liable
because you were defending your property from intrusion.
When it comes to defending your home or personal property. The use of
force in defense of property is much more limited than it is in defense of self or
others. Each state has its own laws regarding the amount of force you can use, but
state statutes often use terms like “reasonable” or “proportionate” to describe what
type of force is allowed. The defense of property argument is an important tool
when defending yourself against a tort lawsuit.
EXAMPLE CASE: R v Scully (1824) 171 ER 1213
In R v Scully (1824) 171 ER 1213 held that it was not justifiable to shoot an intruder
merely to arrest him, on the facts, "the life of the prisoner was threatened, and if he
considered his life in actual danger, he was justified in shooting the deceased as he
had done; but if, not considering his own life in danger, he rashly shot this man, who
was only a trespasser, he would be guilty of manslaughter."
5. NECESSITY: The complete defense of necessity applies in cases of trespass.
In tort common law, the defense of necessity gives the state or an individual a
privilege to take or use the property of another individual. A court will grant this
privilege to a trespasser when the risk of harm to an individual or society is
apparently and reasonably greater than the harm to the property. ‘Necessity knows
no law’. In order to avoid or prevent a great loss or harm, a defendant can cause lesser
harm that is justified. The act of the defendant may be not legal but if it is to avoid major
damage then he can plead this defense.
EXAMPLE CASE: R V DUDLEY AND STEPHENS (1884)
FACTS: The two defendants and a boy between the ages of seventeen and eighteen
were cast away in an open boat at sea following a storm. The boat drifted in the
ocean and was considered to be more than one thousand miles from land. After
seven days without food and five without water, S suggested that lots should be
drawn with the loser being put to death to provide food for the remaining two.
Subsequently however, D and S colluded to the extent that the boy should be killed
so that they could survive. On the twentieth day, with the agreement of S, D killed
the boy and both the defendants ate him for the following four days until rescue. It
was argued that the defendants believed that in the circumstances they would die
unless the boy was killed.
ISSUE: The issue in this context was whether there was any justification in killing the
boy in order for the defendants to survive. In other words, whether the defendants
could plead that the killing was necessary and thereby give rise to a defense to
murder.
HELD: The defense of necessity was not available as a defense to murder on these
facts. It is not possible to justify the killing of one individual in order to save the life
of another on the basis that the killing is necessary to do so. Although the judgment
is generally accepted and followed (see Buckole v Greater London Council [1971] Ch
655), the judgment implies that the jury’s finding that there was no greater
justification for killing the boy than for any of the castaways, suggests that the
unavailability of the defense may have resulted from the collusion between the
defendants.
There are two types of necessity:
1. PRIVATE NECESSITY: Private necessity usually involves trespassing or
damaging another person’s property to protect yourself, your property, or a
small number of people.
EXAMPLE CASE: VINCENT V. LAKE ERIE TRANSPORTATION CO. [1910]
FACTS: Defendant Lake Erie was at the dock of plaintiff Vincent to unload
cargo from Reynolds, the steamship owned by the defendant. An unusually
violent storm developed. Lake Erie was unable to leave the dock safely and
deckhands for the steamship instead tied the Reynolds to the dock,
continually changing ropes as they began to wear and break. A sudden fierce
wind threw the ship against the dock significantly damaging the dock.
ISSUE: Is compensation required when there is damage to another's property
due to a private necessity?
 DECISION: (Judge O'Brien) Yes. A private necessity may require one to take or
damage another's property, but compensation is required. If
the Reynolds had entered the harbor at the time the storm began, and the
wind knocked her against the dock, this force of nature would not have
allowed Vincent to recover. The defendant, Lake Erie, deliberately kept
the Reynolds tied to the dock. If they had not done so, the ship could have
been lost creating a far greater damage than what was caused to the dock.
Although this was a prudent thing to do, Lake Erie is still liable to Vincent for
the damage caused.
2. PUBLIC NECESSITY: Public necessity, is when you’ve trespassed or damaged
someone’s property to prevent harm to the greater community. This often
applies to public employees like firefighters and police officers.
EXAMPLE CASE: SUROCCO V. GEARY
FACTS: San Francisco was hit by a major fire. The plaintiff, Surocco, was
attempting to remove goods from his home while the fire raged nearby. The
defendant and mayor of San Francisco, Geary, authorized that the plaintiff's
home be demolished to stop the progress of the fire and to prevent its
spread to nearby buildings. Surocco sued the mayor claiming he could have
recovered more of his possessions had his house not been blown up.
ISSUE: Is a person liable for the private property of another if destroying that
property would prevent an imminent public disaster?
DECISION: No. The right of necessity falls under natural law and exists
independent of society and government. Individual rights must give way to
the higher law of impending necessity. A house on fire or about to catch on
fire is a public nuisance which is lawful to abate. Otherwise one stubborn
person could destroy an entire city. If property is destroyed without an
apparent necessity, the destroying person would be liable to the property
owner for trespass. Here, blowing up Surocco's house was necessary to stop
the fire. Any delay in blowing up the house to allow him to remove more of
his possessions would have made blowing up the house too late.
6. LEGAL AUTHORTY: Certain individuals, like Police Officers, have the Legal Authority
to do what would otherwise be Assault or Battery or False Imprisonment if someone
else did the same thing. It include police searches under the Police and Criminal
Evidence Act 1984, and mental health detentions under the Mental Health Act
1983. E.g. Police Officers can detain someone during a valid address or Police
Officers can also break into someone’s house if they have a valid search warrant.
Some industries are given a legal right to emit a REASONABLE amount of
smoke, or noise, or sewerage without being liable. Same way ambulances have legal
right to have sirens (noise pollution) on their cars the way other cars would not have
the right to make the same noise. This is because the Government BALANCES to
enjoy their land and environment in a healthy and peaceful way, WITH the right of
industry to (for the sake of society) generate some pollution while producing
products and services (KESC, SSGC) for us. BUT if a business EXCEEDS the level
considered reasonable, then a Nuisance/Tort action may be brought against them.
 EXAMPLE CASE: UNITED STATES V. ANDERSON, 1517-1518.
In Anderson’s case, the Eleventh Circuit approved the district court's
instruction to the jury that the defendants should be found not guilty if the jury had
a reasonable doubt whether the defendants acted in good faith under the sincere
belief that their activities were exempt from the law.
In Juan, the defendant admitted the criminal acts charged against him, but
sought to defend by demonstrating a lack of criminal intent, i.e., that he thought he
was doing those things in cooperation with the United States government.
Specifically, he moved, pursuant to the dictates of Classified Information Procedures
Act (CIPA), to use classified information to prove a prior relationship with a
government agency in order to prove that his belief of cooperation was reasonable.
The court held that the mere fact that appellant had, in the past, engaged in
the activity he seeks to prove does not insulate him from criminal responsibility for
unlawful acts thereafter. Yet, the past events tend to make more plausible that
which, absent proof of those events, would be implausible. Appellant should be
allowed to establish the premise for his claim.
7. ACT OF GOD: A very unusual act or an event where the damage caused is out of the
control of either the Plaintiff or the Defendant, but is the result of the natural
forces such as earthquakes, volcanic eruptions, floods, droughts, etc. is coined as Act of
God or ‘Vis major’. It is beyond human imagination and could not be prevented
by human intervention.
Suppose that Defendant, a Property Owner, negligently does not repair a
dangerously unstable fence that’s on his property. During a bad storm the fence
collapses on to his neighbor’s house, who sues (therefore becomes the Plaintiff).
Defendant relies on the Defense of Act of God, and brings unchallenged expert evidence
to show that even a sturdy fence would have done the same in such a powerful storm.
EXAMPLE CASE: 1994 COOPER V. HORN, 248 VA. 417, 448 S.E.2D 403
Earthen dam broke causing damage to property owners downstream. Res
Ipas instruction was improperly given. This doctrine rests upon assumption that
thing that causes injury is under exclusive management of defendant, and evidence
of true cause of accident is accessible to defendant and not accessible to injured
party. In addition in this instance, flood water was one of instrumentalities causing
damage and that was not within exclusive control of defendant.
8. INEVITABLE ACCIDENT: The doctrine of inevitable accident is a significant defense in
the law of tort and especially in the area of road accidents. It concerns a situation
where a person, exercising due care, diligence and ordinary prudence, could not
have foreseen or avoided an accident. And that could not have been prevented by
the exercise of reasonable care.
The traditional test for the inevitable accident defense was established
in McIntosh v Bell. A person relying on inevitable accident must [show] that
something happened over which he had no control, and the effect of which could
not have been avoided by the greatest care and skill.
The test requires a defendant to show two things:
1. The external event occurred without any input or contribution from the
defendant (i.e. it was out of his control and unforeseeable); and
 2. The resulting collision, could not have been avoided by the greatest use of
care and skill.
The application of the test is, however, dependent on the facts of each case.
Therefore, whether a defendant can establish that an accident was inevitable is
dependent upon the circumstances of the accident.
EXAMPLE CASE:
FACTS: In 1969, the British Columbia Court of Appeal was asked whether a
defendant was careless in the manner of driving his vehicle or whether he could
explain that the skid on an icy patch of road that led to the collision in question could
have occurred in absence of his negligence.
HELD: The Court of Appeal held that the defendant would have to show:
1. He did not expect ice at that point of the road; and
2. He had no reason to expect it.
However, the Court of Appeal also reasoned that if the defendant could have
foreseen the possibility of icy road patches, he was bound to drive slowly enough to
avoid these.

ANSWER. 3A

VICARIOUS LIABLITY:
Vicarious liability is a doctrine of English tort law that imposes strict liability on
employers for the wrongdoings of their employees. Generally, an employer will be held
liable for any tort committed while an employee is conducting their duties.
Vicarious liability is where one person is held liable for the torts of another, even
though that person did not commit the act itself. It is therefore a form of strict liability (in
that the defendant is not at fault). The most common form of vicarious liability is when
employers are held liable for the torts of their employees that are committed during the
course of employment. The issue of vicarious liability can be seen to be unjust in that
someone who is not at fault can be held liable.
RELEVANT CASE: JOEL v MORISON [1834]
Facts: The plaintiff was walking on foot on a public highway. The defendant had a horse and
a cart, which were under the care, government and direction of his servant. The servant was
driving the cart carelessly, improperly and negligently and struck the plaintiff with the cart
whilst making a detour from the task, which his master had sent him for. The plaintiff fell on
the ground and as a result, one of his legs was fractured. He was prevented from conducting
his business for six months, he had to incur medical expenses and further expenses in order
to employ workers to look after his business. The plaintiff sought compensation from the
master.
Issue: Is the master of a servant liable in damages for the careless driving of the latter?
Held: The verdict was in favor of the plaintiff.
• The master is liable for the careless driving of his servant if the servant is driving the
cart on his master’s business or if the servant, being on his master’s business,
decides to take a detour.
• The master is not liable for the careless driving of his servant, if the servant decides
to lend the cart to another person without the master’s knowledge or the cart is
secretly taken by a person who is not at the time employed on his master’s business.

HOW DOES IT APPLY TO THIS SCENARIO?

In this case, the Funland is run by the owner and the attendant i.e. instructor of
Dodgem Cars is an employee of the Funland. The owner gain services from the attendant
and is liable for any damage the Attendant may cause in his performance. On the principles
of vicarious liability it is the responsibility of the owner of Funland to hire the well-trained
staff in his park. In addition to being sued as vicariously liable, the Owner may also have its
own original Liability, because of the negligence in failing to provide supervision that was
adequate to prevent the risk of injury. He did not take enough care, which a reasonable
Funland usually do. Due to which, the brakes on Sobia and Farah’s dodgem car fail, Farah is
thrown slightly forward in her seat and hurts her back, but Sobia is thrown from the dodgem
car onto the ground and is badly injured with broken bones and head injury which results in
the Physical and Financial damages to the Farah and Sobia.

ANSWER. 3B
CONTRIBUTORY NEGLIGENCE:
In some common law jurisdictions, contributory negligence is a defense to a tort
claim based on negligence. Contributory negligence is the plaintiff's failure to exercise
reasonable care for their safety. A plaintiff is the party who brings a case against another
party (the defendant). If it is available, the defense completely bars plaintiffs from any
recovery if they contribute to their own injury through their own negligence even if
the negligence of the defendant was much more serious.
KEY POINTS:
 Contributory negligence is the plaintiff's failure to exercise reasonable care for their
safety. 
 Contributory negligence could reduce the plaintiff's compensation if their actions
increased the likelihood of the incident occurring.
 Courts must decide how much damage was caused by the policyholder's behavior,
and payment could be reduced or denied.
RELEVANT CASE. 2: Badger v Ministry of Defense (2005)
Facts: In Badger v Ministry of Defense (2005), the claimant’s husband had died of lung
cancer. He had worked for the defendants for over 30 years, during which time he was
negligently exposed to asbestos, which it was found was a cause of his lung cancer. He had
also smoked all his life, and it was found that this was also a cause of the cancer. Did the
smoking make him contributorily negligent? The Queen’s Bench Division found that he was
not contributorily negligent for starting to smoke, because he had started in 1955, when it
was not widely known that smoking could cause cancer, or any other health problems.
However, by the mid-1970s this connection was known, and the first government health
warnings about smoking began to appear. In addition, Mr. Badger had been specifically
warned by his doctors that he ought to give up smoking from 1968 onwards.
Held:
1. The deceased’s continuing to smoke when he should have given up was a substantial
and exacerbating cause of his lung cancer and death.
2. Smoking increased his risk of contracting lung cancer by a factor of 10, as against a
factor of 5 for his exposure to asbestos.
3. He could have given up smoking. There was no evidence that he was addicted to
tobacco and he could reasonably have been expected to give up smoking. He was
advised to do so on four occasions.
4. This amounted to contributory negligence on his part.
5. Damages recoverable by his widow would be reduced by 20 per cent.

HOW DOES IT APPLY TO THIS SCENARIO?

 In this scenario, only Sobia is contributory negligent for the injuries/damages she
suffered because Farah had fastened the seat belts which saved her from a serious
injury. While Sobia ignored the sign boards which were set there for the safety and
didn’t follow the instruction given by the attendant when she went on the Dodgem car
ride. Due to not having proper support she was thrown from Dodgem car and got badly
injured.
 Though Sobia is partly negligent in her injuries and other damages but the ride attendant
and the defendant i.e. owner of the Funland are more negligent as they owe the duty of
care.
 Due to the contributory negligence of the Sobia, the Court held that she contributed
40% in her damages/injuries.
 40% of the claimed amount by Sobia will be (1,350,000 × 0.4 = 540,000/-)
 The reasonable amount she would be getting is 810,000/-

ANSWER. 3C

HARMS/DAMAGES THAT FARAH SUFFERED:

PHYSICAL OR MENTAL DAMAGES: As the brakes on Sobia and Farah’s Dodgem car fail,
Farah was thrown slightly forward in her seat and hurt her back. She suffers mental illness
and keeps having bad dreams after this accident and started to see a therapist. Also, she
goes through severe pain and suffering and can’t even walk properly. She walk on support
and can’t stand for long due to some kind of inferiority complex.
DAMAGE TO PROPERTY: As she had mobile phone in her pocket and hit the steering wheel
when she was thrown forward, so it was totally broken and can’t be used again.
CONSEQUENTIAL ECONOMIC LOSS: Consequential economic loss in tort is an economic loss
stemming from the loss of goodwill, loss of business reputation, the failure of goods to
function as stated, or any loss associated with a defective product. Financial losses that
Farah suffers as a result of Physical Damages.
FINANCIAL DAMAGES THAT FARAH SUFFERED: Farah is a junior banker and she lost three
weeks salary due to the injury in her back. Her career get paused. She is now hospitalized for
three weeks after the accident and is bearing medical expenses.

DAMAGES THAT FARAH CAN CLAIM FOR:

The claimant i.e. Farah can claim for both damages “General Damages” as well as
“Special Damages” but she would mostly prefer the special damages as calculating general
damages is one of the more challenging aspects of filing a personal injury claim. While
calculating special damages is much more straightforward because it is based on actual
expenses. Farah can claim for the special damages quite easily by showing the receipts of
expenses like Medical bill, lost wages, etc.
FINANCIAL DAMAGES THAT THE FARAH CAN CLAIM FOR:
 Farah is a junior banker and her age is 24.
 She has been hospitalized for three weeks.
 Farah’s monthly income is R. 30,000/-
 Farah keeps having bad dreams after this accident and starts to see a therapist at
South City hospital.
Farah’s Income for 21 days 21,000/-
Therapist fee 50,000/-
Medical Expenses 200,000/-
Phone 40,000/-
Total 311,000/-

HARMS/DAMAGES THAT SOBIA SUFFERED:

Physical or Mental Damages: As the brakes fail on Sobia and Farah’s Dodgem car. Sobia was
thrown from the dodgem car onto the ground and got badly injured with broken bones and
head injury. She suffers head trauma, which resulted into her Paralysis. Also, she goes
through severe pain and suffering and can’t even walk due to some kind of inferiority
complex. And after this severe accident she might be going through mental illness as Farah
was suffering.
CONSEQUENTIAL ECONOMIC LOSS: The Financial losses that Sobia suffers as a result of
Physical Damages. Consequential economic loss tort is an economic loss stemming from the
loss of goodwill, loss of business reputation, the failure of goods to function as stated, or
any loss associated with a defective product.
FINANCIAL DAMAGES THAT SOBIA SUFFERED: Sobia was working as a model but it is not
known if she can return to work when her injuries heal. Her career maybe destroyed and
now she might couldn’t achieve it again. She could have achieved more opportunities in
future and could become a supermodel but due to this accident her career might end. She is
now hospitalized for one month after the accident and is bearing medical expenses.
DAMAGES THAT SOBIA CAN CLAIM FOR:
The claimant i.e. Sobia’s father (because Sobia is hospitalized so case is sued by her
father) can claim for both damages “General Damages” as well as “Special Damages” but he
would mostly prefer the special damages as calculating general damages is one of the more
challenging aspects of filing a personal injury claim. While calculating special damages is
much more straightforward because it is based on actual expenses. Sobia’s father can claim
for the special damages quite easily by showing the receipts of expenses like Medical bill,
lost wages, etc.
FINANCIAL DAMAGES THAT THE SOBIA’S FATHER CAN CLAIM FOR:
 Sobia is a Model and her age is 25.
 As it is not known if she can return to work when her injuries heal. So Sobia’s father
also can claim for the future earnings which will be refundable if Sobia gets back to
her career.
 Sobia’s Father claimed for Rs. 800,000 from which Rs. 500,000 can be refunded after
Sobia get back to her career.
Sobia’s Monthly Income 50,000/-
Medical Expenses 500,000/-
Future Earnings 800,000/- from which 500,000/- are refundable
Total 1,350,000/- (500,000/- are refundable)

ANSWER. 4A

DEFENCE OF CONCENT:
Consent is an affirmative defense that may be available to you if you are being sued
for an intentional tort. Under this theory, a person who voluntarily consents to a particular
act cannot also claim that the same act is an intentional tort. The law generally recognizes
that "to one who is willing, no harm is done." Consent can be given expressly in writing or
verbally, and can also be implied by a person's conduct. Whether consent was given is
judged on an objective standard, namely, if a “reasonable person” could conclude that
consent was given.
A good example of the consent defense to intentional torts is voluntarily
participating in a tackle football game. If you knowingly choose to participate in this
game, then you consent to being touched by other players, even to being tackled. You likely
could not sue for the intentional torts of assault or battery if you were injured from being
tackled, since you consented to this activity. However, if the act in question exceeds the
consent you have given, then it may be an intentional tort. For example, if during the
football game, an opponent gets worked up and punches you in the face, this behavior
exceeds the permission you gave, and you may be able to sue that person.
The defense of consent does not apply to all crimes. Indeed it can never be used
for murder. In relation to theft, the courts have held that an appropriation may take place
notwithstanding the consent of the owner of the property.

HOW DOES IT APPLY IN THIS SCENARIO?

In this Scenario, the defendant i.e. Waqas can use the defense of consent that the plaintiff i.e. Misbah
giving the consent that he was playing the cricket on his own will and the injuries caused to him are not
intentionally done by the defendant and the defendant will not held liable because the plaintiff i.e.
Misbah voluntarily agree to suffer the harm, he is not allowed to complain for that and is consent
serves as a good defense against him.

ANSWER: 4B

RES IPSA LOQUITOR:

Latin for "the thing speaks for itself". Res ipsa loquitur is a doctrine or rule of
evidence in tort law that permits an inference or presumption that a defendant was
negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the
accident was of a kind that does not ordinarily occur in the absence of negligence.
To prove res ipsa loquitur negligence, the plaintiff must prove 3 things:
1. The incident was of a type that does not generally happen without negligence.
2. It was caused by an instrumentality solely in defendant’s control.
3. The plaintiff did not contribute to the cause.
For res ipsa loquitur to apply, the accident in question must not be due to any
voluntary action or contribution by the plaintiff. The doctrine has traditionally required
that a defendant have exclusive control over the instrumentality of an injury, but now it
is commonly applied when multiple defendants have joint or sometimes successive
control (as by the manufacturer and retailer of a defective product). In addition to the
control requirement, and sometimes superseding it, is the requirement that a defendant
have responsibility for the instrumentality as well as responsibility to the plaintiff. In
order for res ipsa loquitur to succeed in a medical malpractice suit, the fact that the
accident is one that ordinarily does not occur without a failure to exercise due care must
be readily apparent to the layperson as common knowledge. The accident alone should
afford reasonable evidence of negligence, as when a foreign object is left inside a surgical
patient.
EXAMPLE CASE: YBARRA V. SPANGARD [1944]
FACT: Joseph Ybarra consulted defendant Dr. Tilley, who diagnosed appendicitis and made
preparations for surgery. Ybarra entered the hospital, was given a hypodermic injection,
slept, and was awakened. He was wheeled into the operating room, where his body was
pulled to the head of the table. His back was laid against two hard objects at the top of his
shoulders, about an inch from his neck. Prior to the operation, he had never had any pain in
his arm or shoulder, but afterward, he felt a sharp pain in his neck near the shoulder and
was unable to rotate or lift his arm.
ISSUE: When a plaintiff receives unusual injuries and is unconscious during medical
treatment, can res ipsa loquitur establish the negligence of all the defendants who had
control over his body and might have caused his injuries?
HELD: Yes, res ipsa loquitur can prove that the instrument causing the injury was under the
exclusive control of the defendant, and the injury does not ordinarily happen unless there
was negligence. All persons and instrumentalities exercising control over a person are liable
for any unnecessary harm that results.
Every defendant who had control over the plaintiff's body, for any period, was bound
to exercise ordinary care to see that no unnecessary harm came to him, and all would be
liable for failure. The injury was distinctly a part of his body not subject for treatment or
even within the area covered by the operation. Unless the doctors and nurses in attendance
voluntarily chose to disclose the identity of the negligent person, liability would be
impossible to determine and absolute liability would be the result, irrespective
of negligence.

HOW DOES IT APPLY IN THIS SCENARIO?

This scenario, seems to be Res Ipsa Loquitur breach. Because the facts in the case of
Misbah v Surgeon are obvious and the case is not of contributory negligence. The defendant
i.e. Surgeon left a medical sponge in Misbah’s leg which was discovered after an X-ray. After
a surgery to on his knee, Misbah keeps suffering from knee pain due to the negligence of
medical staff. It is clear from the facts that this cannot be done without the negligence.
Under res ipsa loquitur all those connected with the surgery are liable for negligence
because the Surgeon and the medical staff owe the plaintiff’s duty of care.

ANSWER. 4C
PARTIES IN THE TORT CASES:
DEFINITIONS: A plaintiff is the party who initiates a lawsuit (also known as an action) before
a court. By doing so, the plaintiff seeks a legal remedy; if this search is successful, the court
will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an
order for damages). A defendant is the party defending or denying; the party against
whom relief or recovery is sought in an action or suit, or the accused in a criminal case.
In every legal action, whether civil or criminal, there are two sides. The person suing
is the plaintiff and the person against whom the suit is brought is the defendant. In some
instances, there may be more than one plaintiff or defendant. If an individual is being
sued by his or her neighbor for Trespass, then he or she is the defendant in a civil suit.
The person being accused of murder by the state in a Homicide case is the defendant in a
criminal action.
In Tort Law, the party that commits the tort is called the ‘Tortfeasor’; whereas, the
party who suffers the injuries that are caused by the tort, is called the ‘Injured party’. The
Tortfeasor is called the ‘Defendant’ or ‘Respondent’, while, the Victim is called the
‘Claimant’ or ‘Plaintiff’, during Court Proceedings. (Same as in any type of case). After court
proceedings it the defendant found guilty he will compensate for the damages faced by the
plaintiff.

THERE ARE FOUR POSSIBLE TORT CASES COME OUT OF THIS SCENARIO:
1. CASE (1) MISBAH v WAQAS
 In this case, Misbah can sue the tort case against Waqas because he got badly
injured by the Waqas’s bowling.
 The Plaintiff or Claimant in this case is Misbah and the defendant or
tortfeasor is Waqas.
2. CASE (2) MISBAH v SURGEON
 In this case, Misbah can sue the surgeon of South City Hospital directly for his
negligence. The Surgeon left the Medical sponge in Misbah’s leg. And due to
this act of negligence of the surgeon Misbah has severe pain in his and can’t
walk properly.
 The Plaintiff or Claimant in this case is Misbah and the defendant or
tortfeasor is Surgeon.

3. CASE (3) MISBAH v NURSE

 In this case, Misbah can sue the nurse of South City Hospital directly. Because
she was selling his private medical information without his permission.
 The Plaintiff or Claimant in this case is Misbah and the defendant or
tortfeasor is the Nurse of South City Hospital.
4. CASE (4) MISBAH v SOUTH CITY HOSPITAL
 In this case, Misbah can sue a case against South City Hospital because the
surgeon left a medical sponge in his leg during surgery due to which Misbah
was facing severe pain in his leg. And also a nurse wants to sell his private
medical information to a news channel without his permission. And the
hospital management is vicariously liable for the negligence of the surgeon as
well as for the nurse who is selling his private medical information to a news
channel.
 The Plaintiff or Claimant in this case is Misbah and the defendant or
tortfeasor is South City Hospital Management.

THE END