INDEX

SERIAL NUMBER CONTENT

1) INTRODUCTION

2) RESEARCH QUESTION

3) CASE STUDY

4) CONCLUSION

5) BIBLIOGRAPHY
INTRODUCTION

The term ‘tort’ is the French equivalent of the English word ‘wrong’ and
Roman term ‘delict’. “Tort is a civil wrong which is not exclusively breach
of contract or breach of trust”. It now means a breach of some duty,
independent of contract, giving rise to a civil cause of action and for
which compensation is recoverable.
In society everyone has a basic freedom of action, however this freedom
of action has to be balanced to protect society’s freedom of interest. This
balancing of interest forms the base of the entire law of torts. Torts law
answers two of the most fundamental questions faced by any society:
“how should people treat each other” and “whose problem is it when
things go wrong”.
The basic element of torts are: -
1)Act /Omission
2)Malice in law – i.e. without lawful justification
3)Malice in fact
4)Reasonable foresight of consequences
Malice in law -is the absence of lawful justification from one’s act. For ex:-
Hammering on my wall intentionally to disturb my neighbour’s music
classes is without legal justification.
In tort the plaintiff is entitled to get the unliquidated damages. The basic
principle underlying tort law is that no one should be harmed by the acts
of others. There is a duty of care towards everybody, which is impliedly
imposed under law. In spite of various attempts an entirely satisfactory
definition of the word tort still awaits its master. To provide a workable
definition in general terms, a tort may be defined as a civil wrong
independent of contract for which the appropriate remedy is an action for
unliquidated damages. A civil injury for which an action for damages will
not lie is not a tort. e.g., public nuisance , for which no action for
damages will lie by a member of the public. The person committing a tort
or wrong is called a tort-feasor or wrong doer, and his misdoing is a
tortious act. The principal aim of law of tort is compensation of victims or
their dependants. Grant of exemplary damages in certain cases will show
that deterrence of wrong-doers is also another aim of the law of torts.

RESEARCH QUESTION

1)Is tort law best understood in consequentialist or

nonconsequentialist terms?

2)Can tort law be moral?

CASE STUDY:

CASE 1

Balbir Singh Makes vs Sri Ganga Ram Hospital

Facts: Mr. Manpreet Singh Makol (victim) was diagnosed with a malign
tumour with an early diagnoses. On the advice of Dr. M.P Singh for a second
option, Mr. Manpreet Singh was consulted to Dr. Makhani. Mr. Singh was
then admitted to Sri Ganga Ram Hospital and fell victim to a medical
blunder caused by Dr. Makhani. Bone grafting was performed on the now
deceased, by Dr. Makhanidispite the biopsy report being “awaited”. The
patient was pacified by the doctor about performing the bone-grafting
without the biopsy and was discharged from hospital. Nearly 10 months
later, the patient succumbed. The parents of Mr. Singh submitted a
memorandum to the cancer research review programme held at PGI,
Chandigarh and had written to the Tata Cancer Institute, Bombay,
according to whom, the only treatment was mid-thigh amputation.
According to the Complainant the bone grafting to a patient of
osteosarcoma was a criminal act on the part of the part of the doctors who
operated upon the patient. The complainant alleged that the doctor
deliberately and intentionally performed the wrong treatment to make
money. While the complaint was still pending, the surgeon passed away
as a result, the national commission applied the rule of
12actiopersonalismoritur cum persona and held that by the death of the
surgeon the action comes to an end and the surgeons legal heirs cannot be
held liable.

1) Issue: Was Dr. Makhani responsible for Mr. Manpreet Singh Makol’s
death?
2) Was there a breach of duty of care on the part of DrMakhani and Sri
Ganga Ram Hospital?
3) Can Mr. Balbir Singh Makol, father of the deceased claim compensation
from Sri Ganga Ram Hospital?

Rule:

1
(2001) C.P.J 45 (N.C.)
In this case, DrMakhani was negligent in delivering his duties as a medical
examiner and did cause a breach in his duty of care, however due to the
death of Dr. Makhani, the proceedings before the commission cannot
survive as the allegations against the doctor can neither be rebutted nor
could he have the opportunity to defend himself. The maxim actio
personalis moritur cum persona, as a general rule is applicable to actions
in torts and therefore the cause of action against whom a tort is brought
extinguished on his death.

Analysis:

The Commission held that, in the tort of medical negligence the cause of
action is personal against the person who has been negligent in discharging
his duties and that the cause of action does not survive against his estate
or the legal representatives. In this case, the question of whether Dr.
Makhani was even negligent in delivering his medical duties could not be
adjudicated upon. The death of the surgeon extinguished his liability for
damages and the suit against him stood abated. Thus, the maxim
actiopersonalismoritur cum persona was applied in this case.

JUDGEMENT:

Dr. Makhani was not held liable upon his death nor could his legal heirs be
held liable. It was truly unfortunate that no relief in the case could be
accorded to the complainant on account of the death of the surgeon. It
could not be ascertained what considerations were taken by the deceased
at the time he took the decision.

Klaus Mittelbachert v. East India Hotels Ltd.

Facts:

Klaus Mittelbachert (plaintiff) was a co-pilot working with Lufthansa, a

German airline. Mr. Mittelbachert was scheduled to have a lay-over in Delhi
after which he was scheduled to continue his flight to Frankfurt. The plaintiff
checked in Hotel Oberoi Intercontinental in New Delhi. In the afternoon the
plaintiff visited the swimming pool equipped with a diving board,
unfortunately while diving the plaintiff met with an accident and was
paralysed in the arms and legs. He was flown to Germany under medical
escort. Mr. Mittelbachert continued his treatment after which he was
discharged from the clinic however, his condition did not improve. His
condition only became from bad to worse. A suit was filed for a recovery of
3Rs. 50 lakhs. According to the plaintiff the diving board placed at the
swimming pool suggested a proper depth of water into which a swimmer
could dive. The hotel management (defendant hotel) owed the plaintiff a
duty to take care and ensure his safety. Having failed therein the
defendants are guilty of negligence and were, therefore, liable to
compensate the plaintiff for the consequences flowing from the accident.
While fighting for the case, Mr. Mittelbachet passed away due to acute
cardiac arrest, he had incurred huge medical finances due to treatment. At
the end, compensation was given to the dependents of the deceased.

Issue:
1) Is Hotel Oberoi Intercontinental liable to pay compensation to Mr. Klaus?
2) Has the Hotel failed to provide a degree of care to it’s guests?
3) Can Mr. Klaus recover the damages that he had incurred in terms of his
health and medical expenses?
Rule:

3
(1999) ACJ (287)
The Hotel (defendant) did have a duty to provide reasonable care to it’s
guests and has committed a breach of duty of care and negligence in the
case of Mr. Klaus Mittelbachert. Moreover, it is also observed that there is
no difference between a five star hotel and an insurer as far as safety is
concerned. A hotel charging a high is obligated to owe a degree of care in
context of the services it provides and the safety of it’s structures to it’s
guests.

Analysis:

The court held Hotel Oberoi Intercontinental responsible for the damages
caused to Mr. Klaus. In this case the maxim “actiopersonalismoritur cum
persona” is not applicable because there has been a breach of contract
between the defendant and the plaintiff. The action of tort survived under
section 306 of the Succession Act. The hotel owed a duty of care to the
plaintiff. Mr Klaus himself gave a detailed narration of his plight which he
had to undergo ever since he met with the accident till the date of the
recording of his statement. The plaintiff’s family physician, who treated Mr.
Klaus narrated the mental and physical ordeal his patient went through till
his death.
The deceased’s widow and daughter were brought on record as plaintiffs.
A compensation of Rs 50 lakhs was claimed by the widow and daughter of
Mr. Klaus.

JUDGEMENT:

The defendant failed to discharge it’s duty, the very existence of a

swimming pool filled with water and a diving board in the hotel implies an
obligation on the part of the hotel to keep it free from any latent or patent
defect that may cause an injury to any persons using the pool. As the hotel
failed to fully discharge duty of care the plaintiff incurred loss which
ultimately led to death thus, the tortious liability of the hotel survived.

CONCLUSION

A tort is a civil (non-criminal) wrong that causes someone else to

suffer loss or harm. Economists propose that tort law is best
understood in consequentialist terms. Corrective justice theorists
claim that tort law is best understood in nonconsequentialist
terms. According to the established orthodoxy, the law of private
wrongs- especially, the common law tort- fails to map onto our
moral universe. Four objections in particular have caught the
imagination of skeptics (a person who questions the validity or
authenticity of something purporting to be factual) about the
moral foundations of tort law: They intend to caste doubt over
the moral appeal of the duty of care element; they object to the
morally arbitrary elements of factual causation and harm; and
they complain about the unnecessary extension of liability under
the aspect of the proximate cause element. Analyzing these four
prevailing arguments against the moral character of tort law can
be reconstructed so as to reflect, to an important extent, our
considered judgement about basic moral principles.
BIBLIOGRAPHY:-

 Books referred-

The law of torts (Ratanlal and Dhirajlal)

 Website referred-

www.manupatra.com
 https://global.oup.com/academic/product/philosophical-foundations-of-the-law-of-
torts-9780198701385?cc=in&lang=en&