Law of Torts: An Overview

This article is authored by Sanskriti Goel, a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. This article discusses the various definitions and evolution of law of torts.

Origin of the term ‘Tort’

The word ‘tort’ is French equivalent of the English word ‘wrong’. The term has been derived from the Latin word ‘tortum’ which means ‘twisted’ or ‘crooked’. Therefore, tort essentially means a civil wrong or a wrongful act, which is either intentional or accidental and results in injury or harm to another who in turn recourse to civil remedies for damages or court order or injunction.

Definition of the term ‘Tort’

There is no comprehensive definition of tort but over the many years, several jurists have attempted to give a workable definition of the term ‘Tort’. The two categories under which these definitions fall is as follows:

Definition of Tort in Relation to Breach of Contract

Salmond says: “ A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation. ”
Clark and Lendsell say: “ Tort is a wrong independent of contract for which the appropriate remedy is a common law action. ”
Underhill says: A tort is an act or omission which is unauthorized by law, and independent of contract.
1. infringes either
  - Some absolute right of another; or
  - Some qualified right of another causing damage; or
  - Some public right resulting in some substantial and particular damage to some person, beyond that which is suffered by the public generally; and
2. Give rise to an action for damages at the suit of the injured party.

Section 2(m) of The Limitation Act, 1963 defines: “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Based on the above-mentioned definitions, it can be concluded that three distinct features are essential to constitute a tort. These features are:

Tort falls under the classification of civil wrong.
A tort is other than a breach of contract of a breach of trust; and
The wrong can be redressed by an action for unliquidated damages.

Definition of Tort in Terms of Breach of Legal Duty or Infringement of a Legal Right

Fraser says: “A tort is an infringement of right in the rem of a private individual giving a right of compensation at the suit of injured party.”
Pollock says: “Every tort is an act or omission which is related to harm suffered by a determined person.”
Winfield says: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

On the basis of these definitions, it may be concluded that the following conditions must be fulfilled in order to hold a person responsible in tort:

There should be breach of a duty;
This duty should be essentially fixed by law;
This duty should be towards persons generally; and
Remedy should be available in the form of unliquidated damages.

Evolution of Law of Torts in England

The main source of the law of torts is the common law. This means that law of torts is based on decided cases and owes its development to the activity of thee judges.

Before 1852

Until the mid 19th century, the question which arose when a plaintiff sued a defendant for some alleged enquiry was “ Has the plaintiff any form of action against the defendant and if so what form? ” If he could not fit his claim into one of the recognised forms of action, he had no legal grievance. An action was usually commenced by a writ issued from a government department. The plaintiff had to choose the most appropriate writ and pay for it. If he purchased a wrong writ or he could not fit his claim in one of the recognised ‘forms of action’ his suit was dismissed . The maxim at that time was ‘ubi remedium ibi jus’ which means where there is no writ, there is no right.

After 1852

The Common Law Procedure Act, 1852 and the Judicature Act, 1872 abolished the recognised framework of ‘forms of action’. Now the remedies are given for the damages suffered by the aggrieved party based on his right, not on whether they can be fitted into an established framework. In today’s times, the maxim is ‘ubi jus ibi remedium’ which means where there is a right, there is a remedy. A leading case in this reference is Ashby v. White (1703) 2 Ld. Raym. 938. In this case, the plaintiff was a valid voter at a parliamentary election. The defendant, the returning officer at the voting booth, wrongfully prevented the plaintiff from exercising his voting rights. Now, there was no loss, monetary or otherwise, suffered by the plaintiff as even the candidate, for whom he wanted to vote, won the elections. Still the plaintiff succeeded in his action against the defendant for a simple reason that the plaintiff’s right was violated. This case significantly contributed to the development of law of torts by establishing the principle ‘ubi jus ibi remedium’.

Evolution of Law of Torts in India

The Indian law had a much narrower conception of the law of torts than the English law of tort. In India, emphasis used to be on ‘punishment for crimes’ and not on ‘compensation for wrongs’. Gradually, with the advent of the modern era, the process of development of the law of torts started in India. The rules of law of torts in India are based on the common law of England.

Before Independence

During the 18^th century, the British administration established the Mayor’s Courts in India. These were established in the three presidency towns of Calcutta, Bombay and Madras. The Charter of 1726 introduced English Common Law and Statutory law in India for the first time. As a result, the law of torts, which is a branch of common law, was introduced in the courts of Calcutta, Madras and Bombay.

After Independence

The same rules of law of torts continued to be used in India even after Independence. Even today, the Indian law of torts is significantly influenced and shaped by the English common law system. However, the Indian courts are not bound by the English common law in the sense that the courts determine the appropriateness of English law before applying a particular rule to Indian case.

This happened in the landmark case of M.C. Mehta v. UOI (1987) 1 SCC 395 wherein the Hon’ble Supreme Court of India introduced the principle of absolute liability in place of strict liability which was established in the famous case of Ryland v. Fletcher (1868) LR 3 HL 330 so as to deal with issues arising in a modern industrialised economy. In the case Ryland v. Fletcher, the defendant employed independent contractors to construct a reservoir on his land to provide water for his mill. There was negligence on the part of contractors that they didn’t block the mine shafts which they came across while constructing the reservoir due to which water flooded plaintiff’s coal mine resulting into damage to the mines of the plaintiff. It was found as a fact that the defendant did not know about the shafts and had not been negligent. Justice Blackburn J. held the defendant liable by introducing the concept of strict liability and hence observed: “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. Therefore, strict liability doesn’t take into account the intention or carelessness of the defendant, when the defendant caused the injury.

The facts of the famous case of M.C Mehta v. UOI were as follows: In 1985 in Delhi, a factory of the Shri Ram foods and fertilizers industries leaked Oleum gas that killed one person and had few others hospitalised and created huge panic among the residents. The then Chief Justice of India P.N Bhagwati held : “ We are of the view that an enterprise, which is engaged in hazardous or inheritance cli dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding area, owes an absolute and non delegable duty to the community to and sure that no harm results to anyone on the account of hazardous activity in which it is engaged and it must be conducted with the highest standards of safety and if any harm is done on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. ”

The doctrine of strict liability has many exceptions while the doctrine of absolute liability is not subject to any exceptions.

CONCLUSION

Tort law has grown into a powerful and independent branch of law over the period of many years. But it can be seen that the development of tort law has been more significant in the developed countries like England, America and Canada, in comparison to developing countries like India. It is observed that the development of the law of torts in India has been slow due to several reasons. Some of the reasons include illiteracy, lack of proper knowledge of one’s rights, poverty, expensive judicial system and uncodified tort laws. Nevertheless the importance of the law of torts has been increasingly recognised across the globe, so as to protect the interest of individuals rather than to punish certain categories of the wrongdoer.

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