Law of Torts Project

Project Work of Law Of Torts

On “Discharge of Torts by Wavier ”

Submitted To:Harishchandra salve Faculty of Law Of Torts

Submitted By :Kumar Vikram Aditya Roll No. 1023 1st Year B.A. LL.B. (Hons)

Discharge of torts by waiver

TABLE OF CONTENTS



Table of Cases



Introduction



Aims And Objectives



Hypothesis



Research Methodology



Discharge of Torts



Types of Discharge of Torts  

Waiver  Limitation



Release



Death of parties 

Position in England



The Law Reform (Miscellaneous Provisions) Act, 1934 and the position of  the maxim



Position in India



Accord and Satisfaction



Acquiescence



By Judgement Judgement Recovered or Res Judicata



Discharge of Torts by Waiver 



Cases Related to Discharge of Torts by Waiver 



Conclusion



Bibliography

TABLE OF CASES

INTRODUCTION

If a tort is committed a right of action arises in favour of the injured person. It comes to an end by one of the seven methods of discharge of torts. Thus the extinction of liabili ty is known as “Discharge of Torts”1. The seven methods are:

Death of person which includes fatal accident



Wavier by election



Release



Statutes of Limitation



Accord and Satisfaction



Acquiescence



Judgement Recovered

Discharge of torts by wavier can be used if for the same crime, there are more than one remedy and the plaintiff selects one remedy and leaves the other, he is said to have waived the other remedies. He cannot pursue the remedies, which he had given up. Waiver by election may be either express or implied. Waiving of torts means that only the right to recover damages for the tort is waived and not the whole of the tort is waived. The phrase, „waive the tort‟ does not mean that the tort itself is waived; it is only the right to recover  damages for the tort committed that is waived. There were no cases that were dealt in this type of discharge of torts but still there were a few in some of them because most of the types of discharge of torts are compromised outside the court. Hence, there are no such cases which are in record although there are some excep tions like death of the person or death by fatal accident. Some of the other t ypes of discharge of torts are also dealt outside the court some of them are accord and satisfaction, release and others. There are several cases related to discharge of torts by waiver some of them is dealt in the research work later are:

United Australia, Limited v Barclays Bank Limited



Verschures Creameries Ltd v Hull and Netherlands Ste amship Co Ltd



Brocklebank, Ld. v. The King



1

Hardie & Lane, Ld. v. Chiltern

AIMS AND OBJECTIVES

The prime objective of the researcher is to :

Validate the meaning of discharge of torts



To know the various types of torts



Meaning of discharge of torts by wavier 



Cases related to discharge of torts by waiver 

HYPOTHESIS If a tort is committed a right of action arises in favour of the injured person. It comes to an end by one of the following methods. Thus the extinction of liability is known as " Discharge of Torts". It is of seven types death of person including fatal accident, waiver, release,

limitation, accord and satisfaction, acquiescence, judgement recovered. Discharge of torts by waiver means if a person has more than two remedy then he can waive one of them. Waiving of torts means that only the right to recover damages for the torts is waived and not the whole of tort is waived.

RESEARCH METHODLOGY The various books, various articles, websites, Law journals, Acts, Treatises, Articles, are referred for this topic. The sources from which the material for this research collected are secondary. So the methodology used in the research has been Doctrinal. No non-doctrinal method has been used by the researcher in this project work.

DISCHARGE OF TORTS If a tort is committed alright of action arises in favour of the injured per son. It comes to an end by one of the following methods. Thus the extinction of liability is known as "Discharge of Torts". 1. Death of one of the Parties including Fatal Accidents 2. By Judgement recovered 3. By Limitation 4. By Waiver  5. By Accord and Satisfaction. 6. By Release 7. By Acquiescence 1. Death of one of the Parties:-

Death of one of the Parties, it means Previously death extinguished all the liabilities of the  person. But after the Law Reforms Act 1934,it was decided that death extinguished only the liability for personal torts like defamation, assault etc..All the other causes of action survive to the legal representatives of the deceased. 2. By Judgement recovered:-

If an action is brought before the court seeking redress for the tort committed and the  judgement is given, the liability for that particular tort comes to an end. If the plaintiff fails, he cannot go in for another legal proceedings. 3. By Limitation:-

According to law, for every enforcement of person's right a certain p eriod is fixed. This is done on the basis that law will not help dormant persons. Moreover, a person will not be able to establish a defence due to death of witness or loss of evidence, after certain time.

4. By Waiver:-

By Waiver of Torts, for the same wrong, if there are more than one remedy and the plaintiff  selects one remedy and leaves the others, he is said to have waived the other remedies. He cannot pursue the remedies, which he had given up. Waiver may be either express or implied. Waiving of torts means that only the right to recover damages for the torts is waived and not the whole of tort is waived. 5. By Accord and Satisfaction:-

If the plaintiff and the defendant agree to settle the liability by valuable consideration, the tort is discharged. This agreement is called "accord" and the consideration is called "satisfaction". When the satisfaction is performed the right of action comes to an end. 6. By Release :-

By release, the injured party releases the wrongdoer by a document, then the liability is discharged. In accord and satisfaction there is valuable consideration, but in this method there is no consideration. 7. Acquiescence :-

When a person who is entitled to enforce a right neglects to do so for a very long time, it is impliedly inferred that he has waived or abandoned his right. His right of action is taken away by such undue delay.

TYPES OF DISCHARGE OF TORTS WAIVER: 

Where a man has more than one remedy for a tort, and he elects to pursue one of  them, giving up the other remedies, the other remedies are waived.



The phrase, ³waive the tort´ does not mean that the tort itself is waived; it is only the right to recover damages for the tort committed that is waived.



If out of several civil remedies available for a wrong, the injured person elects to  pursue only one of them, he shall be precluded from pursuing other afterwards.



Waiver is express or implied.

1. What does waiver mean? Waiver can be defined as a voluntary relinquishment of legal rights that a person or  organisation would normally have if the waiver did not exists. Although waiver is commonly referred to in contract law and particularly is a concept often related to breach of contract, it is a broad term which is applicable in other areas of law too. 2. What are some examples of waiver? In the context of contract law, typical examples of waiver mi ght include losing the right to insist on goods that are exactly as described; losing the right to see a partic ular set of terms enforced in a contract; receiving payment in a form that was different to the form originally intended i.e. cheque instead of credit card. 3. How does a waiver come into existence?

For a waiver to come into existence, the person who forfeits legal rights must do so in an informed way, without duress and through words (verbal and written) or through conduct implying a waiver has come into existence .

4. What is waiver by election?

Waiver by election occurs where a person or organisati on makes a choice between several rights (for example, choice of remedies) and communicates that choice through their conduct or words. The conduct and words must be of such a nature that it is unequivocal that the  party has chosen to exercise one right and abandon another. 5. What is the difference between waiver and estoppel?

In estoppel, one party represents to the other that it will not exercise certain legal rights. The  party that is represented to relies on this being the case. The key differences are in the concepts of reliance and detriment. In waiver, one party does not have to rely on a waiver by the other and suffer if the other party does not do as they said. In estoppel, one party relies on the representation and the party making the representation is „estopped‟ (prevented) from going back on their word because this would cause „detriment‟ to the other party . LIMITATION: 

Action for tort must be brought within the prescribed statutory period; otherwise the right to sue is barred.



In England, the Limitation Act, 1980 fixes the time during which actions of tort must  be brought. In India, the Indian Limitation Act, 1963 lays down the respective period within which to sue for different parts.



Section 3 (1) of the Limitation Act 1963, subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.



Caution:



There is a distinction between wrongs which are actionable per se and those which are actionable only where the plaintiff can prove that he has suffered actual damage.



The period of limitation runs, in the first case, from the time when the wrongful act is committed; in the second, from the time of the plaintiff‟s first sustaining actual injury.



Article 1 to 137 in The Limitation Act 1963 prescribes t he periods of Limitation. Some of them are Stated Below:

Description of Suit

Period of Limitation



For compensation for False Imprisonment



One Year 



For Compensation a malicious prosecution



One Year 



For compensation for Libel



One Year 



For compensation for obstructing a way or a water course



Two Years



For Compensation for diverting a water 



Two Years



To Restrain Waste



Three Years



For Compensation of Trespass Upon immovable Property



Three Years

RELEASE: 

It is open to an injured party to release the wrong-doer from liability for  compensation.



According to English Law, a release of rights must be supported by consideration or   by a formal document signed, sealed and delivered.



According to Section 63, the Indian Succession Act, consideration is not necessar y for  release, and therefore, it would be open to an injured party to release the wrong-doer  without any consideration.



But a release executed under mistake (Hore v. Becher, (1842) 12 Sim 465), or in ignorance of one‟s rights (Phelps v. Amcott, (1869) 21 LT 167), or obtained by fraud (Hirschfield v. S.C. Ry. Co., (1876) 2 QBD 1) is not binding.

DEATH OF PARTIES: POSITION IN ENGLAND

Under the Law Reform (Miscellaneous Provisions) Act, 1934, on the death of any person all causes of action subsisting against or vested in him shall survive against or for the benefit of  his estate, except action for Defamation. According to English Common Law, a personal cause of action against a person came to an end when he died. The rule was contained in the maxim “Actio Personalis Moritur cum Persona”, which means that a personal cause of action dies with the person.

E.I. Ltd. v. Klaus Mittelbachert, AIR 2002 Delhi 124 FACT: - A co-pilot in airlines stayed in Hotel Oberoi Continental, a 5- Star hotel having the facility of swimming pool. While diving his head hit on the bottom of the swimming pool, which resulted in serious head injuries to the plainti ff. In the single judge decision the  plaintiff was allowed Rs. 50 Lakhs as Compensation. The above decision was appealed  before the Division Bench. While the appeal was pending, the plaintiff died. ISSUE:- Whether the rule of discharge of torts by death will be applied here or not ? JUDGEMENT:- It was held that the plaintiff‟s suit abated on his death, and therefore, his legal representatives had no right to pursue the case and could not seek substitution in this case. The earlier Single Judge decision granting compensation was reversed. Exceptions

The following exceptions have been recognised to the above rule: a. Action under contract

The rule that a cause of action came to an end with the death of either of the parties did not apply to an action under the law of contract. Contractual obligations could be enforced by or  against the legal representatives of the parties to the contract. In case of contracts of personal service, such as the painting of a picture, however, the legal representatives could not be bound. Sections 37 and 40 of the Indian Contract Act also make a s imilar provision. S. 37. Obligation of parties to contract: -

The parties to a contract must either perform or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of  any other law. Promise bind the representatives of the promisors in case of the death of such promisors  before performance, unless a contrary intention appears from the contract.

Illustrations:

A promises to deliver goods to B on a certain da y on payment of Rs. 1,000. A dies before that day. A‟s representatives are bound to deliver the goods to B, and B is bound to pay the Rs. 1000 to A‟s representatives. Mr. A, promises to paint a picture for B by a certain day at a certain price. Mr. A, dies before the day. The contract cannot be enforced either by A‟s representatives or by B. S. 40. Person by whom promise is to be performed:

If it appears from the nature of the case that it was the intention of the parties to the contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other case, the promisor or his representatives may employ a competent person to perform it. Illustrations:

A promises to pay B a sum of money. A may perform this promise, either by personally  paying the money to B by another, and if a dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so. A promises to paint a picture for B. A must perform this promise personally. b. Unjust Enrichment of  tortfeasor’s estate:

If someone, before his death, wrongfully appropriated the property of another person, the law did not allow the benefit of that wrongfully appropriated property to pass on to the legal representatives of the deceased. The person entitled to that property was entitled to bring an action against the legal representatives of the deceased and to recover such property or its value. The idea behind the rule was that only what actuall y belonged to the deceased should constitute his estate and his estate should not be unjustly enriched by what does not belong to him.

The Law Reform (Miscellaneous Provisions) Act, 1934 and the position of the maxim

The Common Law rule has been abrogated by the passing of the Law Reform (Miscellaneous Provisions) Act, 1934. Section 1(1) of the Act provides that: “on the death of any person .. all causes of action subsisting against or vested in him shall survive-against or, as the case may be, for the benefit of his estate.´ The Act recognises an exception in respect of cause of action for defamation in which case the cause of action comes to an end, on the death of either of the parties. Thus, after the passing of the Law Reform Act, 1934, the general rule is that if a cause of  action comes into existence in the lifetime of the parties, the death of either the plaintiff or  defendant does not affect the cause of action. Illustration: If a person is injured in an accident, he may suffer loss in the form of medical expenses, loss of income during or after confinement as a result of being incapacitated from doing his normal work, pain and suffering or the reduction in the expectation of his l ife. He can obviously bring an action for the same. If, unfortunately he dies, the legal representatives of  the deceased are entitled to pursue the same action. Rose v. Ford, (1937) A.C. 826 FACT :-A girl of 23 years was severely injured by an accident, caused by the negligence of  the defendant. Two days after the accident, her leg was imputed and four days after the accident, she died. The father of the girl was entitled to claim compensation for the benefit of  her estate on account of pain and suffering loss of leg and diminution in the expectation of  her life. ISSUE:- Whether Ford is liable for the Death of the person or the rule of discharge of tort is applicable here?

JUDGEMENT:- Here the House of Lords held that ford the defendant is liable for the act of  death since it falls under the exception of the rule of discharge of torts b y waiver. FATAL ACCIDENT IN ENGLAND:

The Fatal Accident Act was passed in 1976 which enabled certain dependents of the deceased to claim compensation for the loss arising to the dependents from such death

POSITION IN INDIA

The maxim was modified quite early by the legislation and has no application where  provisions to the contrary are made in a statute. The Indian Succession Act, enacts that all causes of action in favour of or against a person survive, except those for defamation, assault, as defined in the IPC, and other personal injuries not causing the death of the party.

Balbir Singh Makol v. Sir Ganga Ram Hospital, (2001) C.P.J. 45 (N.C.) FACT: A complaint was filed against a surgeon, whose blunder resulted in the death of the complainant‟s son. While the complaint was still pending, the surgeon concerned died. ISSUE: Whether the rule of discharge of torts appli cable on Ganga Ram Hospital or not ?

JUDGEMENT: The National Commission applied the rule “Actio Personalis Moritur Cum Persona” and held that by the death of surgeon, the right of action had come to an end and the surgeon‟s legal heirs cannot be held liable in the case.

 Nrusingha Charan v. Ratikanta, AIR 1978 Orissa 217 FACT : A money decree was passed against a Hindu father in respect of an amount received  by him by misrepresentation. ISSUE: Whether the rule of discharge of tort applicable in this case or not ?

JUDGEMENT: It was held that the liability of the father in such a case was personal. It was not a debt which could be realised from the son under the dictum of moral obligation. Moreover, the Plaintiff‟s relief under the law of torts had ended with the death of the father  and the son could not be made liable for the same. Zargham Abbas v. Hari Chand, AIR 1980 All 259 FACT: The suit for damages for defamation on account of malici ous prosecution was decreed against Zargham Abbas and his son, Ali Abbas. At the appellate stage, Zargham Abbas died. ISSUE: Whether the rule of discharge of torts by Death is applicable or not? JUDGEMENT: It was held that if the cause of action does not survive the death of the first appellant, it is the appeal which would abate and not the suit, and the decree under the appeal court still be executed against the assets in the hands of the heir. In this case the decree was  jointly against the father and the son. It was further held that the death of the father did not affect the maintainability of the appeals from the decree. FATAL ACCIDENT IN INDIA:

The Fatal Accident Act was passed in 1855 which said t hat if loss is caused to the representative of a person by his death in an ac cident, the person at fault has to compensate them.

ACCORD AND SATISFACTION: 

An accord is an agreement between two or more persons, one of whom has a right of  action against the other, that the latter shall render and the former accept some valuable consideration in substitution for the right of action. „Accord‟ indicates the agreement and „satisfaction‟ the consideration which makes it operative.



Just as civil obligation can be discharged by accord and satisfaction, as also tortuous liability can be discharged by accord and satisfaction.



When an agreement had been reached between the parties, the consideration of which may have been settled to be paid even in future, the agreement once reached satisfied the claim, and is a bar to an action in court except of the agreement itself.



But the agreement must be based on the payment of cer tain thing, otherwise an agreement, unaccompanied by a consideration, is void and is not a bar to the right of  action.

ACQUIESCENCE: 

It is a well settled principle of law that if a person, with full knowledge of his right to  bring an action for tort, neglect to do so for a length of time, it may be inferred that he has abandoned the right.

BY JUDGEMENT RECOVERED OR RES JUDICATA:

When an action is brought before a tribunal of competent jurisdiction and it proceeds to final  judgement, the original right of action is in any case destroyed. If plaintiff fails, he is stopped from asserting his alleged right in any other legal proceedings against the same party or his successors-in-interest. If he succeeds, the original rights in respect of which he sued is merged in the higher and better right which he obtained by his judgement, even though it be unsatisfied. This principle of res judicata is based on the rules embodied in the maxim interest “republicae ut sit finits litium” which means it is the interest of the state that there should be an end to the litigation, and “nemo debet bis vexari pro una et eadem causa” which means it is a rule of law that a man shall not be twice vexed for one and the sa me cause.

DISCHARGE OR TORTS BY WAIVER 

„Waiver „ is a vague term used in many senses 1. It is sometimes used in the sense of an election („waiver by election‟),as where a person decides between two mutually exclusive rights : for instance, where in certain circumstances a plaintiff  may waive a claim in tort and bring a restitutionary claim 2, or where a contract creates alternative liabilities between two different persons; or a contract is made  between the two parties on the basis of estoppels 3, or an option right is waived 4. „Waiver‟ is also used to describe a situation where a party prevents performances, or announces that he will refuse performance, or loses an equitable right by laches. In the law contract , „waiver‟ sometimes refer to a variation of a contract supported  by consideration, or it may refer to the act of an innocent contracting party to affirm the contract after serious breach, or it may describe the election of the innocent party to abandon all rights in respect of a breach of contract. 5

Waivers have also been considered as releases, it having been said that “A waiver  is nothing unless it amounts to a release,” The courts have also declared that “a waiver to be operative must be supported by an agreement founded on a valuable consideration.” These statements it must be apparent, however, are only applicable to the express or true waiver and do not form rules for the government of thesocalled implied waivers. It can only be concluded therefore that to support an

express waiver the elements of a contract must be present, and that this waiver is only supportable by a voluntary intentional release of a fully apprehended right. 6 “The essence of a waiver is an „intentiona l relinquishment of a known right. Waiver thus requires

a strong and clear showing of intent to waive. Just as waiver may not be created by ambiguous statements, it has been held that waiver may not be created by negligence or silence. silence is insufficient to establish an intent to waive 7

CASES RELATED TO DISCHARGE OF TORTSBY WAIVER 

CONCLUSION

BIBLIOGRAPHY