Relevance of Torts in Present Scenario

Introduction

Any civil wrong for which the law provides a remedy is referred to as a tort. Torts compensate people and property for injuries caused by someone else’s negligence. Essentially implying, a tort is a civil wrong independent of a contract where the only remedy available is in the form of compensation. A tort is the French version of the English word “wrong” as well as the Roman law term “delict.” The term tort comes from the Latin word “tortum,” which denotes “twisted, crooked, or incorrect.” plays a role in disciplining organizations and individuals who cause harm to others through reckless and negligent behavior. The fundamental principle of tort law is Ubi Jus Ibi Remedium. The objective of tort is to recompense the victim whose legal right has been infringed or violated by the person who caused the damages in the first place, as well as to deter them from repeating the same breach in the future. In India, tort law is a relatively young common law development reinforced by codifying statutes, including damages statutes. Tort first appeared in India, which is still a developing country, with the establishment of British India. Following independence, India embraced British laws, including the distorted idea of tort law. While India generally takes the same strategy as the United Kingdom approach, there are some variances that could show judicial intervention, causing controversy. Because of conflicts about who should carry the economic burden of an accident and what damage should be compensable, there has always been concern over whether tort law should be restricted. Although statutes such as the Motor Vehicles Act of 1988, the Consumer Protection Act of 1986, and the Environment Protection Act of 1986 were enacted to establish tort liability in India, there is no official codification or formal legislation of tort law in our country. It has also been held that section 9 of the Code of Civil Procedure, 1908, which allows the civil court to try all civil matters, implicitly confers jurisdiction to apply tort law as a matter of justice, equity, and good conscience. As a result, the court can use its inherent powers under section 9 to expand this area of liability.

Law of Torts in Present Scenerio

A Brief Outline

COVID-19’s spread has clearly been one of the most challenging moments for the judiciary all over the world for administering justice. The judiciary in India, the world’s largest democracy, has always been challenged by the huge amount of litigation cases that come before courts every day. An Indian court can assume jurisdiction by being the site where the cause of action, the tort; occurred, according to India’s conflict of law provisions, which are yet uncodified. Analyzing the situation in other nations, India considered its own capacity to avert a pandemic, taking into account the limited resources available in a country with an inadequate health infrastructure.

With the current persistent provisions, the plaintiff(s) filing a lawsuit in an Indian court would have the onus of responsibility to prove that the Chinese government’s concealment of the virus’s nature and failure to take appropriate measures to contain it, creating an actionable act under both Chinese and Indian law, and thus the suit will be governed concurrently by both the Chinese and Indian tort law.

According to the House of Lords’ interpretation of common law principles, negligence is defined as a failure to exert the degree of care that should have been undertaken by the doer. As stated in Rajkot Municipal Corpn. vs. Manjulben Jayantilal Nakum, (1992 ACJ 792), Indian tort law is based on common law principles as;

that the defendant owed the plaintiff a “legal” obligation of duty and care
that the defendant breached this duty
the plaintiff suffered harm as a result of the defendant’s breach

The Liability of Spread of Virus

China’s ‘responsibility of care’ to India and its residents can be traced back to the relevant sections of the International Covenant on Economic, Social, and Cultural Rights and the International Health Regulations, 2005. This legal obligation to non-nationals can be extended to include a duty to other countries and their citizens. China has breached its duty of care to the countries by failing to notify the World Health Organization in accordance with the International Health Regulations of 2005 in a timely manner despite the given signs of a public health issue and the whistleblower being subjected to traumatic measures for threatening the name of the country in an international context.

“Using a constructive knowledge criterion holds liable individuals who actively avoid knowledge of infection even when suffering apparent indications of a disease,” it was determined in the case of Endres v. Endres. California’s courts had imposed culpability in another case, Doe v. Roe, even when the person spreading the disease believed they were not infected.

Although it has not been resolved whether a cause of action for negligently disseminating COVID-19 can exist, it appears that the individuals should be held accountable because they knew or should have known that they were carriers of the virus; those people had an obligation to avoid COVID-19 transmission and thus contain the spread ensuring the right to live of other individuals.

The Liability to ensure the public health

Suits have already been brought against cruise ship operators, nursing homes, and entertainment venues, alleging that someone wrongfully exposed me/my loved ones to COVID-19, and we/they became infected/died as a result. It may be simple to demonstrate causation in some cases (for example, some who are infected by the virus were in very closed locations such as nursing homes given the knowledge about incubation periods, it is reasonable to infer that they caught the coronavirus in that location). While causation may be simple to establish, for example, prisoners with coronavirus definitely caught the disease inside prisons, there may be no negligence with the institutions’ poor health and medical infrastructure.

Doctors who prescribe drugs to COVID-19 patients that the Regulatory Authority has approved for other applications should be insulated from liability by legislation if the drugs don’t work, as long as scientific evidence supports their usage for this purpose. Liability considerations have delayed the development of new vaccinations in the past, as seen by outbreaks of smallpox and other influenzas. In 1976, when President Gerald Ford launched an ambitious effort to immunize millions of people against a swine flu outbreak, insurers and manufacturers refused. Liability shields have allowed businesses to manufacture effective therapies swiftly while avoiding legal repercussions. However, taking complete responsibility for highly new items that are developed and licensed at breakneck speed is a dangerous endeavor for countries.

Although governments’ tortious culpability should be assimilated to that of citizens, ‘there are limits to the extent to which that is achievable because governments’ character and functions differ from those of individuals. Assessing the reasonableness or unreasonableness of government policy decisions is an unsuitable matter for judicial consideration in determining government tort liability. Considerations in the context of the COVID-19 pandemic and government culpability in negligence might include the potential of harm being caused to the public and the economic loss sustained as a result of putting in place contagion-control procedures.

Medical Negligence

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab Appeal (Crl.) 144-145 of 2004 opined that;

Negligence is defined as a breach of duty caused by the failure to do something that a prudent and reasonable person would do, or by doing something that a prudent and reasonable person would not do, based on the principles that normally govern the conduct of human affairs.

Mismanagement, denial of proper care and medical help to patients, non-observance of safety rules have all been reported, putting the lives of both healthcare personnel and patients in jeopardy. These difficulties raise the issue of medical negligence reflecting the tortious liability. In light of the harsh conditions in which doctors work, there are suggestions that medical practitioners be temporarily exempt from liability for medical malpractice. Another intriguing viewpoint is to look into alternative dispute resolution processes in which the patient can be reimbursed financially to the degree possible.

Conclusion

Rather than basing our judicial thought on English laws, we need to develop new principles and norms that effectively address the difficulties of India thus indicating a need for our own jurisprudence. The spread of COVID-19 has undoubtedly been one of the most difficult times for humanity to accept, and because the number of cases is alarmingly high with various mutant variants taking a spread, it is the responsibility of each and every individual to act responsibly with the negligent people, as well as the ruling machinery, who must be held accountable for their actions. With one recent instance of the case of Johnsons & Johnsons Talc Powder Cancer Case in tort law where 22 women in the US state of Mississippi claimed to have developed ovarian cancer after using Johnson’s talcum powder, and the firm granted them $3.6 billion amplifies the importance of tort jurisprudential evolution in India where the aggrieved would have a justified resort to resolve the grievances.

This article is authored by Aathira Pillai a 5th year BLS LLB student of Dr. D. Y. Patil College of Law.

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