Neighbour Principle and other tests to determine the tort

The essential elements of a tort are already discussed. In this article the landmark judgments stating various tests for determining an act to be a tort are discussed.

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Donoghue v Stevenson established the “neighbour principle” which is used to determine whether or not the defendant owes a duty of care. The application of this test is based on whether or not a particular situation may be construed as one requiring a duty of care.

Caparo v Dickman provided a clearer application of the neighbour principle.

It defined the principle as requiring three elements in establishing duty of care:

a) reasonable foresight of harm;

b) sufficient proximity of relationship; and

c) that it needs to be fair, just and reasonable to impose a duty.

Caparo test will only be applied in situations where it may not be clear whether there is an established duty of care.

In order to determine whether the breach of duty of care exists, the courts will apply a two-part test:

a) the court will consider how the defendant should have behaved in that particular situation, and,

b) whether the defendant’s behaviour fulfilled the required standard of care.

In the case of Blyth v Birmingham Waterworks [1856] 11 Exch 781 it was established that the defendant must meet the standard of “the reasonable person”. This is an objective test that questions what a reasonable person would have done in that particular situation.

Any damages suffered by the claimant need to be a direct result of the breach of duty of care. If the defendant’s breach of duty has caused the loss to the claimant, then the causation is present. The principle of causation was considered in the case of Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where it was held that although the defendant had breached a duty of care, this breach had not caused the death of the deceased.

In order to establish whether causation is present in the case, the courts will apply the “but for” test. This test asks “but for the defendant’s breach of duty, would the harm to the claimant have occurred?”:

a) If the answer is yes, then the claimant has failed to establish causation.

b) However, if the answer is no then causation is satisfied.

However, the case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 established that where there is more than one possible cause of the injury to the claimant, causation can be established if it can be shown that the defendant’s action is the likely cause of the harm. This case established that it is enough to show that the defendant’s negligence “materially contributed to the harm” to the claimant.

McGhee v National Coal Board [1973] 1 WLR 1 further modified the “but for” test by adding that the claimant only needs to establish the defendant’s negligence by proving that the defendant “materially contributed to the risk of harm” to the claimant.

The case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No. 1) [1961] AC 388 established the commonly applied test of remoteness which determines whether the damages suffered by the claimant are too remote. It considers whether the damage suffered is of such kind that the reasonable person would have foreseen it.

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Importance of Date in a pleading

Hello friends, if you are planning to approach Court in a case then you must know all the material facts clearly about the incidence specifically Dates related to that matter. Here I am sharing some abstract from a Supreme Court Judgement in which the actual date of a material fact pleaded by the respondent was not known to them. This blog is intended for knowledge purpose only. If you are really aggrieved then please contact a Lawyer in your city.

Title: Mahoora Bano vs National Insurance Company 

Date: 8 January, 2020

IN THE SUPREME COURT OF INDIA

Case no. CIVIL APPEAL No.78 OF 2020 (arising out of Special Leave Petition (C) No.5580 of 2018)

HON'BLE MR. JUSTICE N.V. RAMANA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

Summary of Order passed (only for study purpose)

1. Leave granted.

2. Challenging an Order passed by the High Court allowing an application for review and reducing the compensation originally awarded in an appeal arising out of the award of the Motor Accident Claims Tribunal, the claimant has come up with the above appeal.

3. Dt. 17.11.2007 : road accident occurred causing permanent partial  disablement in left arm of appellant. Claim of Rs.30,00,000/ was filed before Motor Accident Claims Tribunal, Srinagar.

The Tribunal awarded a total compensation of Rs.2,75,000/­ as follows:

a)    mental agony: Rs.90,000/­

b)   expenses for employing an attendant: Rs.30,000/­

c)    medicines and diet: Rs.1,30,000/­

d)   transportation: Rs.25,000/­.

4. Appellant was not satisfied with the amount awarded, so she filed appeal in the High Court of Jammu and Kashmir at Srinagar.

On Dt. 11.06.2014 The High Court enhanced the compensation from Rs.2,75,000/­ to Rs.4,96,600/­ as follows:

a)    loss of income: Rs.2,01,600/­

b)   expenses incurred for taking treatment outside the State: Rs.20,000/­.

5. The award on account of loss of income was on the following grounds:

a)    appellant had an income of Rs.1500/­ per month

b)   60% permanent partial disablement

c)    multiplier of 17 applied upon 60% of the annual income namely Rs.18,000/

d)   Thus amount payable = Rs.2,01,600/­.

6. Insurance company filed a petition for review before the High Court. Insurer appointed a surveyor/investigator to investigate into the claim relating to the employment of the appellant. It was revealed that the appellant, who was employed on a temporary basis as a teacher, got regularized subsequently. Therefore, the Insurance Company sought a review on the short ground that there was no loss of income for the appellant.

7. Appellant was held guilty of suppression of material particulars in her claim petition, as she described her occupation as “household lady engaged in agriculture”. So High Court deleted a sum of Rs.2,00,000/­ which represented the compensation awarded towards loss of income.

8. Appellant was obviously employed as Rehbari Taleem (RT) teacher on a monthly salary of Rs.1500/­.

9. Appellant described her occupation as ­Government teacher, in her suit in Motor Accident Claims Tribunal. Thus it is not wholly correct to say that the appellant was guilty of willful suppression or the commission of fraud upon the Court.

10. Following facts can be seen from the order of Tribunal:

a)    the appellant was working as Rehbari Taleem teacher, earning a monthly income of Rs.1500/

b)   appellant would have completed five years of service and would have been regularized.

c)    On the account of documentary evidence provided by appellant it is clear that she is under Government employment as teacher.

11. All the grounds of appeal before the High Court were focused on inadequacy of compensation towards mental agony, medicines, diet, transportation etc. And she did not focus upon the refusal of the Tribunal to award any compensation for loss of income

12. Following facts can be seen from the order of High Court in the appeal of compensation:

a)    The finding recorded by the Tribunal is, thus, based on assumption, especially so in view of the categorical statement ‘made by the witness, Irshad Ahmad, that the appellant lost the job.’

b)   High Court actually took note of the employment of the appellant as a teacher and the allegation of suppression made against her by the Insurance Company.

13. High Courts observations in review petition: appellant was engaged as ReT and subsequently regularized as a General­line teacher, therefore, the contention raised in the appeal that she was a household lady working in agriculture fields has been proved false.

14. Petition of review by the insurer and the order of the High Court passed in the review application do not contain any date of regularization of the services of the appellant.

Dt. 22.03.2005: appellant was appointed on temporary basis as a teacher and she shall become permanent after 5 years of completion of her service i.e. in March ­2010.

15. On the date on which the appellant deposed before the Tribunal, the statement that she had not been regularized, was not false, but true. The High Court did not even know the date on which the appellant was regularized. Even the review petition filed by the insurer does not disclose the date of regularization. Therefore, the High Court could not have taken a pedantic approach and allowed the review application. Hence, the appeal is allowed and the impugned order of the High Court passed in the review application is set aside. The original order of the High Court passed in the main appeal shall stand restored.

Thanks for reading till the end. Please read complete order on IndianKanoon.