priya tort project.docx

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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

LAW OF TORTS PROJECT

ON

HISTORICAL DEVELOPMENT OF TORT LAW IN INDIA

COMPARING WITH UK

SUBMITTED BY

PRIYA SEWLANI

2014083

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Ta!" #$ %#&'"&'(

INTRODUCTION

DEFINITIONS

NATURE OF THE LAW OF TORTTYPES OF TORT LAW

EVOLUTION OF TORT LAW IN INDIA

EVOLUTION OF TORT LAW IN UK

U) J*( I)R"+",)*+

RESEARCH METHODOLOGY

SIGNIFICANCE

CONCLUSION

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ACKNOWLEDGEMENTS

I would like to sincerely thank the Sociology Teacher Mrs sridevi mam for giving me this

project on the “HISTORI!" #$%$"O&M$'T O( TORT "!) I' I'#I! OM&!RI'*

)ITH +,- which has widened my knowledge on the scope and relevance of it in the Indian

"egal System. Her guidance and support has /een instrumental in the completion of this

project.

I would also like to thank all the authors0 writers0 columnists and social thinkers whose ideas

and works have /een made use of in the completion of this project.

My heartfelt gratitude also goes out to the staff and administration of #S'"+ for the

infrastructure in the form of our li/rary0 that was a source of great help in the completion of

this project.

I also thank my friends for their precious inputs which have /een very helpful in the

completion of this project.

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INTRODUCTION

! '#-'0 in common law jurisdictions0 is a civil wrong that unfairly causes someone else to

suffer loss or harm resulting in legal lia/ility for the person who commits the tortious act0

called a tort feasor . !lthough crimes may /e torts0 the cause of legal action is not necessarily

a crime0 as the harm may /e due to negligence which does not amount to criminal negligence.

The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail0 the

.plaintiff in the lawsuit must show that the actions or lack of action was the legally

recogni1a/le cause of the harm. The e2uivalent of tort in civil law jurisdictions is delict. "aw

is any rule of human conduct accepted /y the society and enforced /y the state for the

/etterment of human life ! tort is a civil law wrong for which the remedy is an action for

unli2uidated damages and which is not e3clusively the /reach of contract or the /reach oftrust0 or the /reach of other merely e2uita/le o/ligation. The term tort was introduced into the

terminology of $nglish law /y the (rench speaking lawyers and judges of the courts of

'ormandy and !ngering kings of $ngland. !s a technical term of $nglish law0 tort has

ac2uired a special meaning as a species of civil injury or wrong. Till a/out the middle of the

seventeenth century tort was an o/scure term0 at a time when procedure was considered more

important than the right of an individual. The first 4ritish courts esta/lished in India were the

mayor5s courts in the three presidency towns of alcutta0 madras0 and 4om/ay. These courts

were esta/lished in the eighteenth century. The term 6tort7 was introduced into the

terminology of $nglish "aw /y the (rench speaking lawyers and 8udges of the ourts of

'ormandy and !ngering ,ings of $ngland. !s a technical term of $nglish law0 tort has

ac2uired a special meaning as a species of civil injury or wrong. Till a/out the middle of the

seventeenth entury tort was an o/scure term0 at a time when procedure was considered more

important than the right of an individual. This emphasis on procedural aspect for determining

the success for a case continued for some 9:: years0 till ;


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#$(I'ITIO'S

“! tort is a civil wrong for which the remedy is an action for+nli2uidated damages and which

is not e3clusively the /reach of a contract0 or the /reach of a trust0 or the /reach of other

merely e2uita/le o/ligation-> Sa!+#&,

.Tortious lia/ility arises from the /reach of a duty primarily fi3ed /y law? this duty is

towards persons generally and its /reach is redressi/le /y an action for unli2uidated

damages.->W)&$)"!,

Na'*-" #$ '/" La #$ T#-'

Numerous attempts have /een made to define a “tort- or “tortious lia/ility-0 with varying

degrees of lack of success. )infield7s definition is designed to distinguish tortious lia/ility

from other traditional legal categories such as contract or trust. It is not possi/le to assign any

one aim of the law of tort0 which is not surprising when one considers that the su/ject

comprehends situations as disparate. Tort is concerned with the allocation of responsi/ility

for losses which are /ound to occur in our society. It is o/vious that in any society of people

living together numerous conflicts of interest will arise and that the actions of one person or

group of persons will from time to time cause or threaten damage to others. This damage may

take many forms> injury to the person0 damage to physical property0 damage to financial

interests0 injury to reputation and so on and whenever a person suffers damage he is inclined

to look to the law for redress. The redress may take various forms. In the great majority oftort actions coming /efore the courts the claimant is seeking monetary compensation for the

injury he has suffered0 and this fact strongly emphasises the function of tort in allocating or

redistri/uting loss. In many cases0 the claimant is seeking an injunction to prevent the

occurrence of harm in the future and in this area the direct “ preventive function of tort

predominates. !n injunction is the primary remedy sought0 for e3ample in cases of nuisance

and the so>called “economic torts- such as inducing /reach of contract. $ven when the claim

is for damages in respect of a completed wrong0 the role of tort can only /e s2uared in some

cases with the idea of compensation /y giving that word an artificially e3tended meaning .In

few situations0 where e3emplary damages are awarded 0 the idea of compensation is dropped

altogether in favour of overt punishment /ut much more fre2uently there are su/stantial

awards of damages for matters like injury to reputation and interference with li/erty0 which

one cannot even /egin to 2uantify in mathematical terms.

!t the risk of repetition0 we must again stress that is framing this definition )infield was

not seeking to indicate what conduct is and what is not sufficient to involve a person in

tortious lia/ility0 /ut merely to distinguish tort from certain other /ranches of law. It is true

that a cause of action in modern law is merely a factual situation the e3istence of which

ena/les the claimant to o/tain a remedy from the court; so he is certainly not in the position

he was in =:: years ago having to choose the right “form of action- to fit his claim.

)infield7s view that tortious duties e3ist /y virtue of the law itself and are not dependent

1Letang v. Cooper(1965) .!. "#"$ per D%p&o' L..

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upon the agreement or consent of the persons su/jected to them. I am under a duty not to

assault you0 not to slander you0 not to trespass on your land 0/ecause the law says I am under

such a duty and not /ecause I have agreed with you to undertake such a duty.

T"( #$ T#-' La

*enerally speaking0 a tort is when one person or entity inflicts an injury upon another in

which the injured party can sue for damages. In tort lawsuits0 the injured party @referred to

as the “plaintiff- in civil cases Acompara/le to the prosecutor in a criminal caseB@ seeks

compensation0 through the representation of a personal injury attorney0 from the “defendant-

for damages incurred Ai.e. harm to property0 health0 or well>/eingB.

Tort law determines whether a person should /e held legally accounta/le for an injury againstanother0 as well as what type of compensation the injured party is entitled to. The four

elements to every successful tort case areC ,*'0 -"a%/ #$ ,*'0 %a*(a')#&0 and )&*-. (or

a tort claim to /e well>founded0 there must have /een a /reach of duty made /y the defendant

against the plaintiff0 which resulted in an injury.

T#-' !a(*)' are the /iggest category of civil litigation0 and can encompass a wide range of

personal injury cases > however0 there are three main categoriesC )&'"&')#&a! '#-'(

&"5!)5"&%" a&, ('-)%' !)a)!)'

Intentional Torts

!n intentional tort is when an individual or entity purposely engages in conduct that causes

injury or damage to another. (or instance0 striking someone in a fight would /e consider an

intentional act that would fall under the tort of /attery? whereas accidentally hitting another

person would not 2ualify as “intentional- /ecause there was no intent to strike the individual

Ahowever0 this act may /e considered negligent if the person hit was injuredB.

!lthough it may seem like an intentional tort can /e categori1ed as a criminal case0 there are

important differences /etween the two. ! crime can /e defined as a wrongful act that injures

or interferes with the interests of society. In comparison0 intentional torts are wrongful acts

that injure or interfere with anindividual’s well>/eing or property. )hile criminal charges are /rought /y the government and can result in a fine or jail sentence0 tort charges are filed /y a

plaintiff seeking monetary compensation for damages that the defendant must pay if they

lose. Sometimes a wrongful act may /e /oth a criminal and tort case.

Negligence

There is a specific code of conduct which every person is e3pected to follow and a legal duty

of the pu/lic to act a certain way in order to reduce the risk of harm to others. (ailure to

adhere to these standards is known as negligence. 'egligence is /y far the most prevalent

type of tort.

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+nlike intentional torts0 negligence cases do not involve deli/erate actions0 /ut instead are

when an individual or entity is careless and fails to provide a duty owed to another person.

The most common e3amples of negligence torts are cases of slip and fall0 which occur when

a property owner fails to act as a reasona/le person would0 thus resulting in harm to the

visitor or customer.

Strict Liability

"ast are torts involving strict lia/ility. Strict0 or “a/solute0- lia/ility applies to cases where

responsi/ility for an injury can /e imposed on the wrongdoer without proof of negligence or

direct fault. )hat matters is that an action occurred and resulted in the eventual injury of

another person.

#efective product cases are prime e3amples of when lia/ility is maintained despite intent. In

lawsuits such as these0 the injured consumer only has to esta/lish that their injuries were

directly caused /y the product in 2uestion in order to have the law on their side. The fact that

the company did not “intend- for the consumer to /e injured is not a factor.

E6#!*')#& O$ T#-' La I& I&,)a

In India the term tort has /een in e3istence since pre independence era. The Sanskrit word

D8imhaDwhich means crooked was used in ancient Hindu law te3t in the sense of portions of

fraudulent conduct. +nder the Hindu law and Muslim law tort had a much narrower

conception than the tort of the $nglish law. The punishment of crimes in these systems

occupied a more prominent place than compensation for wrongs. The law of torts as

administered in India in modern times is the $nglish law as found suita/le to Indian

conditions and as modified /y the acts of the Indian legislature. The law of torts in India

presently0 is mainly the $nglish law of torts which itself is /ased on the principles of the

common law of $ngland. However the Indian courts /efore applying any rule of $nglish lawcan see whether it is suited to the Indian society and circumstances. The application of the

$nglish law in India has therefore /een a selective application. Its origin is linked with the

esta/lishment of 4ritish courts in India. The law of torts in India is mainly the $nglish law of

torts which itself is /ased on the principles of the common law of $ngland. This was made

suita/le to the Indian conditions appeasing to the principles of justice0 e2uity and good

conscience and as amended /y the acts of the legislature. Its origin is linked with the

esta/lishment of 4ritish courts in India.

The e3pression justice0 e2uity and good conscience was interpreted /y the &rivy ouncil to

mean the rules of $nglish "aw if found applica/le to Indian Society and circumstances. The

Indian courts /efore applying any rule of $nglish law can see whether it is suited to the

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Indian society and circumstances. The application of the $nglish law in India has therefore

/een a selective application. On this the &rivy ouncil has o/served that the a/ility of the

common law to adapt itself to the differing circumstances of the countries where it has taken

roots is not a weakness /ut one of its strengths. (urther0 in applying the $nglish law on a

particular point0 the Indian courts are not restricted to common law. If the new rules of$nglish statute law replacing or modifying the common law are more in consonance with

justice0 e2uity and good conscience0 it is open to the courts in India to reject the outmoded

rules of common law and to apply the new rules. The development in Indian law need not /e

on the same lines as in $ngland. In M. Mehta v. +nion of India0 =0 8ustice 4hagwati said0

“we have to evolve new principles and lay down new norms which will ade2uately deal with

new pro/lems which arise in a highly industriali1ed economy. )e cannot allow our judicial

thinking to /e constructed /y reference to the law as it prevails in $ngland or for the matter of

that in any foreign country. )e are certainly prepared to receive light from whatever source it

comes /ut we have to /uild our own jurisprudence.-

#uring 4ritish rule0 courts in India were enjoined /y acts of parliament in the +, and /y

Indian enactments to act according to justice0 e2uity and good conscience if there was no

specific rule of enacted law applica/le to the dispute in a suit. They departed from it when

any of its rules appeared unreasona/le and unsuita/le to Indian conditions. !n $nglish statute

dealing with tort law is not /y its own force applica/le to India.

It has also /een held that section E of The ode of ivil &rocedure0 which ena/les the civil

court to try all suits of a civil nature0 impliedly confers jurisdiction to apply the law of torts as

principles of justice0 e2uity and good conscience. Thus the court can draw upon its inherent

powers under section E for developing this field of lia/ility.

In a more recent 8udgement of 8ay "a3mi Salt )orks ApB ltd v. State of *ujarat 0Sahai. 8.0

o/servedC truly speaking the entire law of torts is founded and structured on morality.

Therefore0 it would /e primitive to close strictly or close finally the ever e3panding and

growing hori1on of tortuous lia/ility. $ven for social development0 orderly growth of the

society and cultural refineness the li/eral approach to tortious lia/ility /y court would /e

conducive. Tort law is said to /e a development of the old ma3im ubi jus

ibiremedium A$very right needs a remedyB. !re Indians simply possessed of fewer rights in

this important sphereF )hat are we to make of this underdevelopment regarding a

fundamental 2uestion in almost all systems of law> how to make the victim whole0 how to provide reparationF The law of torts as administered in India in modern times is the $nglish

law as found suita/le to Indian conditions and as modified /y !cts of the Indian "egislature.

The law of torts or civil wrongs in India is thus almost wholly the $nglish law0 which is

administered as rules of justice0 e2uity and good conscience. In $nglish law0 a tort is a civil

wrong0 as distinguished from a criminal wrong. The term tort comes from the "atin tortus0

meaning crooked. Some wrongs are the concern of the state0 and so the police can enforce the

law on the wrongdoers in court > in a criminal case. The police does not enforce a tort. It is a

civil action taken /y one citi1en against another0 and tried in a court in front of a judge Aonly

rarely0 in certain cases of defamation0 with a juryB. ertainly0 some of the features of the law

"A*+ 19,, SC 1-#

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of torts are which were developed in $ngland are a/sent in India. The Indian courts

therefore0 apply those principles to match the situations in India. This means there is an

altercation from the 4ritish law to suit the Indian conditions. This fact is 2uite appreciated

/ecause there is a difference in the societies and systems of 4ritain and India. Tort law is not

codified in India. This means whenever an e3igency arises0 a precedent shall /e set up to take

care of the peculiar situation. This definitely is a good solution to cope up with civil matters

in the largest democracy on the planet. It has also /een noted in the +nion ar/ide asethat

Section E of the ode of ivil &rocedure0 which ena/les a ivil ourt to try all suits of a civil

nature0 impliedly confers jurisdiction to apply the law of torts as principles of justice0 e2uity

and good conscience. This definitely is0 providing a forum to try civil wrongs and making

them a miscellaneous category. This provides the courts with a wide array of jurisdiction.

'uisance0 negligence0 etc. are wrongs of a different nature. It is definitely agreed that the

simpler torts need highlighting0 /ut the pro/lem again remains the same. "itigation. To

overcome the same there should /e courts specifically set for these small offences or even

/igger ones0 of civil nature.The development of tort law is evident in the law relating to

nuisance as well. &rinciples0 such as the polluter pays principle are now /eing accepted

through various judicial pronouncements in India.

There has /een a wide acceptance of cases going to the Supreme ourt via writ petitions or

pu/lic interest litigations. This is a more effective and e3peditious remedy availa/le. How

often it has /een seen0 that the Supreme ourt has admitted writ petitions under !rticle G= of

the onstitution of India. The courts have awarded compensation in such cases as well. Thus0

the courts have tried to provide an effective forum and method to the citi1ens. 'ow0 in

matters like environment0 in which the claimants pro/lems used to /e the prerogative of the

State &ollution ontrol 4oard. It was upon the 4oard to approach the court. The situation has

changed now. The courts have recogni1ed citizen suits in such matters too0 thus opening anew way for the common men to approach the courts. !nother reason why the Supreme

ourt has /ecome a remedy provider is that0 there are very few pro/lems of locus

standis. Most of the cases have /een dispensed off in a very tactful and justifia/le manner.

E6#!*')#& #$ T#-' La )& UK

$nglish tort law concerns civil wrongs as distinguished from criminal wrongs in the law of

$ngland and wales. The tort of negligence A$nglish law law of tort0 scots law0 law of depictB

is a modern tort which has /een developed /y the judiciary in the +, since the case of

#onoghue vs. Stevenson. (ew can dou/t that the +, human right act0 ;EE


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freedoms defined in the convention /ut does not re2uire that a state should incorporate the

convention in domestic law so as to re2uire local courts to apply it.Tort law is concerned with

civil wrongs. +ndou/tedly the largest Aand most dynamicB area of law within tort is the law

of negligence. In the conte3t of personal injury claims0 the injured person will most likely sue

in negligence0 although there are otherregimes which are also relevant. 'egligence is a

relatively new tort0 and it has /een largely developed /y the judiciary. Its e3pansionthroughout the late ;Eth and =:thcentury reflects the pressures which the rise of industrial and

ur/an society has/rought to /ear upon the traditional categories of legal redress for

interference with protected interests. Its fle3i/ility means that it can /e used /y the courts to

findlia/ility in novel conte3ts.

(or the court to make a finding of negligence0 the claimant must prove a num/er of things.

(irstly it must /e shown that the defendant owed the claimant a duty of care The duty concept

was generalised in the famous judgment of #onoghue v StevensonGin which the House of

"ords rejected the previous law in which lia/ility for careless /ehaviour e3isted only in a

num/er of separate0 specified situations0 and em/raced the idea of a general duty to “take

reasona/le care to avoid acts or omissions which you can reasona/ly foresee would /e likelyto injure your neigh/ourJi.e.K persons who are so closely and directly affected /y my act

that I ought reasona/ly to have them in contemplation as /eing so affected when I am

directing my mind to the acts oromissions which are called into 2uestion-L. The most recent

authority on the 2uestion of esta/lishing a duty of care is aparo v #ickman9. ! court will

find a duty of care if the claimant can show that the damage he suffered was foreseea/le? that

there was pro3imity /etween himself and the defendant? and that in all the circumstances it

would /e fair0 just and reasona/le to impose lia/ility on the defendant. ! denial of a duty of

care means that even if the defendant was at fault0 and his fault caused the claimant7s loss0

there will /e no lia/ility it is akin to immunity from lia/ility for the defendant against the

present and future claimants. The concept was used regularly in the early ;EE:s to deny

lia/ility0 especially in actions against pu/lic /odies0 however since a ruling of the $uropean

ourt of Human Rights in ;EE< $nglish courts have /een more reluctant to deny a duty of

care0 preferring to decide the lia/ility 2uestion at the /reach stage after full argument on the

su/stantive merits of the individual case has /een heard. Once the claimant has shown that

the defendant owed him a duty of care0 he must prove that the defendant was at fault i.e.

that he is in /reach of his duty of care. #etermining whether the defendant was at fault is a

two>stage process. (irst0 the court must determine the standard of care that the defendant

owed the claimant. The standard of care will /e the standard that the 6reasona/le person7

would adopt in the profession0 occupation or activity in 2uestion. In determining this

standard0 the courts will often /alance the degree of foreseea/ility or risk of harm against the

cost of avoiding the harm0 and the /enefits to society foregone if the activity in 2uestion isnot carried on. The standard is o/jective. In professional negligence cases Ae.g. cases of

alleged medical negligenceB0 the standard is that of a reasona/ly competent person in the

profession in 2uestion or the particular /ranch of it. In practice this means that the courts

defer su/stantially to the standards set /y the profession itself and supported /y a responsi/le

/ody of opinion. Setting the standard is a 2uestion of law. The court will then determine

whether the actions of the defendant himself reached this standard. This is a 2uestion of

# (19#") AC 56"

/ *0%$ p5,-

52199-3 " AC 6-5

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fact.The claimant must then show that the defendant7s /reach of duty caused the damage that

he suffered. The test is a 6/ut>for7 test /ut for the defendant7s tort0 would the claimant have

suffered the loss or damageF If the answer is no0 then the causation test is satisfied. If it is

yes0 the defendant will not /e lia/le0 even if he has acted negligently. This will often /e a

straightforward issue? however the courts have recently /een faced with difficult causation

cases0 most nota/ly in the conte3t of mesothlioma contracted as a result of e3posure toas/estos. ! lack of knowledge of the etymology of this particular cancer meant that the

claimant was una/le to say when e3actly he contracted the disease? or indeed whether it is

caused /y a single fi/re of as/estos0 or a /uild>up in his lungs of as/estos fi/res. In (airchild

the claimants had /een negligently e3posed to as/estos /y a num/er of employersoccupiers

of properties where they had worked0 and they were una/le now to say which /reach of duty

had caused the contraction of mesothelioma. The House of "ord7s response was to rela3 the

causation rules. This will /e dealt with later in the paper0 for now it suffices to say that this

e3ception to normal causation rules has /een strictly confined. $ven if the claimant satisfies

the /ut>for test he must show that the damage he suffered is not too remote from the

defendant7s negligence. (or e3ample0 the court may find that it was in fact the act of a third

party0 or the claimant himself which caused the damage0 i.e. this act has /roken the chain ofcausation /etween the defendant7s act and the damage suffered. The defendant will also not

/e lia/le for a kind of damage which he could not reasona/ly have foreseen. (inally0 the

damage suffered /y the claimant must /e a type of damage that can /e recovered under the

law of negligence. (or e3ample0 where the claimant has suffered the loss of a chance of

avoiding physical injury0 this loss will not /e compensa/le. The issue arose in *regg v Scott.

The claimant7s *& negligently failed to diagnose that he suffered from non>Hodgkin7s

lymphoma. !fter the cancer was su/se2uently diagnosed0 e3pert evidence was that the

negligent delay in diagnosis reduced the claimant7s chance of survival for a five>year period

from L=N to =9N. The House of"ords denied that the claimant had suffered a compensa/le

injury in this case.

U) J*( I)R"+",)*+

+/i 8us I/iRemedium is a "atin legal ma3im which means “where there is a right there is a

remedy.- The /asic principle contemplated in the ma3im is that0 when a person7s right is

violated the victim will have an e2uita/le remedy under law. The ma3im also states that the

person whose right is /eing infringed has a right to enforce the infringed right through any

action /efore a court.

RESEARCH METHODOLOGY

The researcher will /e doing “doctrinal- study on this topic /y taking help of various /ooks /ased on this topic and reading the judgement of the cases decided on this /asic.

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SI*'I(I!'$

The significance of studying this concept is that the researcher will /e a/le to come across

various change in the pattern of laws evolved after such a long time and to prepare ananalogy /ased on /oth the countries. !lso0 the researcher will /e a/le to come across various

flaws in the laws and the ways it could /e made /etter.

O'"+SIO'

Thus to conclude0 law of torts is a /ranch of law which resem/les most of the other /ranches

in certain aspects0 /ut is essentially different from them in other respects. !lthough there are

differences in opinion among the different jurists regarding the lia/ility in torts0 the law has

/een developed and has made firm roots in the legal showground. There are well definedelements and conditions of lia/ility in tort law.The law of torts in India is definitely not

unnecessary /ut merely re2uires enactments to make it more ascertaina/le. (ailure of

aggrieved persons to assert their legal rights is perhaps to /e ascri/ed not merely to

insufficient appreciation of such rights /ut to other causes as well0 e.g.0 difficulties in proving

claims and o/taining trustworthy testimony0 high court fees0 delay of courts. The elimination

of difficulties which o/struct aggrieved parties in seeking or o/taining remedies which the

law provides for them is a matter which is worthy of consideration. If these lacunae are

removed0 India could also witness a growth in tort litigation.

This /ough of law ena/les the citi1ens of a state to claim redressal for the minor or major

damage caused to them. Thus the law has gained much confidence among the laymen.

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