This article is written by Sharat Gopal, studying BA LLB in 2^nd year at Delhi metropolitan Education. Here it discusses short intro of tort law of tort, contract law, criminal law and concept of quasi-contract and difference between them.

Introduction

Law is a system of rules and regulations, which were created for the betterment and well being of human beings. It is a rule of conduct developed for a certain territory for proper governance of that territory. There is no specific definition for law.

Law of Tort

Tort in simple terms means Civil Wrong. It roots back to the common law and word “Tort” itself was first used in 1580s. The word “Tort” is derived from a Latin word “tortum” which in simple terms means twisted or crooked.

Definition

According to Salmond, tort is a civil wrong for which the remedy is charging unliquidated damages (an amount that cannot be foreseen by a fixed formula) caused to the person. But this is very much different from breach of contract or breach of trust or other merely equitable obligations.

On the other hand, Winfield states that the tortious liability arises from the breach of duty which is primarily fixed by law. And the duty is towards the general public and the breach of this duty is redressable by an action for unliquidated damages.

Both these views are contrary to each other. Salmond’s definition is accepted more by people as it is more practical in nature. On the other hand, Winfield’s definition is more theoretical in nature.

Law of tort

Law of tort is not codified in India. It was adopted from the English Common Law. In India, unlike other countries, moral wrong is not punishable. In countries like Canada, who follow common law, have moral value laws known as Samaritan Law. In these countries the moral wrong is punishable. Example- Not giving water to a thirsty man, when you are carrying water with you, is morally wrong. This is punishable in countries like Canada, but not in India.

Law of torts had a slow development in India with respect to other countries and has its own reasons for this-

Low Illiteracy rate in India.
Poverty in India.
Very little knowledge about the judiciary in common people.
High expenses on legal services.

Torts law in India mainly deals with the violation of legal rights and duties. It usually believes in compensation more than punishment. Its focus is on bringing the victim back to the position he was before the commission of the tort.

Law of Contract

Law of Contract is a codified law in India dealt under the Indian Contract Act, 1872. Now, when we think of the word ‘contract’ all that comes to mind is paperwork and a lot of complications through provisions. But under Indian contract act, 1872, it is as simple as difficult it sounds.

Basically, it follows through some steps. Starting with the first step that is a person making an offer/proposal to other person attached with some consideration, which is communicated to another person through some means, now it can be expressed as well implied under Indian Contract Act. Then, that offer or proposal is accepted by the other person to whom that offer or proposal is made. When that acceptance gets communicated to the person making the offer/ proposal, there is a formation of promise. That formed promise is called an agreement. Now, that agreement becomes legally enforceable by law, is called a Contract. Hence, all contracts are agreements but all agreements are not contracts. Only those agreements which are enforceable by law are called contracts.

Now, when it comes to breach of contract, parties to a contract can sue the person breaching the contract in the civil court and can claim remedy to it which is liquidated damage.

QUASI-CONTRACT

This at very first was recognised by English law as a quasi-contractual obligation which later the framers of the Indian constitution modified and placed it in the Indian contract act. Hence, it is almost similar to that of English quasi-contract.

Though in India, Quasi-contract has not been specifically defined and is said to be as resembling those of contracts.

Quasi-contract is basically an obligation created not by the parties mutually but by a court for the sake of justice. It is an obligation imposed by law on the parties because of the previous relationship between the parties or due to the fact that one of them might have enriched some profits from the loss of the other. And such obligations are termed as quasi-contractual obligations.

Law of crime

Now criminal laws by the term are clear i.e., it is the law governing crimes. It is generally referred to the offences that are either against the state or acts which are prohibited by law or can be both. In India, criminal laws are governed according to the codified law i.e., Indian Penal Code, 1860 drafted by Macaulay.

Under IPC, it deals with almost all types of crimes and establishes its punishment that shall be reasonable for those types of crimes. Crimes are mostly categorized as felonies based on their nature and the maximum punishment imposed on them. These crimes are prosecuted in the criminal courts.

Difference between tort and contract law

TORT LAW	CONTRACT LAW
Tort is an uncodified law	Contract law is a codified law as Indian contract law, 1872.
In tort, there is a duty fixed by law	In contract law, duty is not fixed by law but is mutually given by parties to each other.
In tort, duty is towards every person. Which is also known as “right in rem”.	Under contract law, duty is only for the parties to that specific contract. This is also known as “right in personam”.
In tort law remedy given is unliquidated damages.	While in contract law remedy provided for a breach of contract is liquidated damages.
Tort is committed without consent	Contracts are totally based on the free consent of the parties.
Motive is often taken into consideration in case of tort.	Motive is completely irrelevant in cases of breaches of contract.
Measures of damages in the case of tort are not predictable.	Measures of damages are generally more or less predictable.

Difference between tort and crime

Tort law	Criminal law
Tort is a civil wrong or a private wrong.	Crime is said to be done against a state and it harms not just the victim of that crime but the whole society. Hence it is a public wrong.
And hence is dealt under civil courts.	And therefore is dealt under criminal courts.
As a result of tort, the remedy given is a compensation which is unliquidated damage.	As a result of crime, a convict is provided with a punishment given under IPC and also fine as per the case may be.
The suit of tort is against a person.	The suit of crime is against the state.
It is private law.	It is public law.

Difference between tort and quasi-contract

Tort law	Quasi -contract
Damages are not fixed in the tort law i.e., also known as unliquidated damages.	Damages to the quasi-contractual obligation are fixed and specified by the court itself.
Duty is imposed toward all people generally and not to a definite person.	Duty is towards a definite person from whom the person has enriched wrongful benefits.

Difference between contract and quasi-contract

Contract law	Quasi-contract
In contract, there is always an agreement between the parties.	In Quasi-Contract, there is not actually an agreement because it is not a real contract but more specifically is a constructive contract.
Here, free consent of both parties is essential.	Consent of the parties is not material in the quasi-contracts, because it is an obligation imposed by courts.
Here liabilities exist by the terms of the parties.	Here liabilities exist independent of the agreement and are based on justice, equity and good conscience.
It is in right in rem as well as right in personam.	It is only right in personam, as strictly available only against a person and not against the entire society.
If the law in force is required, it must be registered.	It is raised through legal fiction.

Difference between contract and crime

Contract	Crime
The injured party has only right for liquidated damages or actual damages caused to him.	the injured party cannot sue for damages as this is a crime against society, the accused will be put to imprisonment or imposed fine or both.
The object of contract law is to protect the rights of parties to a contract	The Objective behind criminal law is to provide peace and harmony in society.
Mens rea for breach of contract is totally irrelevant.	Mens rea is an important element in crime
It is dealt under civil court	It is dealt under criminal court.

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This article has been written by Yash Dodani, a Second-year law student at NALSAR University of Law. He has tried to explain the position of the nervous shock in tort law.

Overview

The tort law was always considered as unwritten principles for physical injuries. The courts have earlier said that nervous shock or we say it psychiatric injury will not be entitled to any compensation. They said that in no manner nervous shock can be considered as same as physical damage. However, they were very clear that if the nervous shock is so direct to the physical damage that it can cause harm to mind, then they have allowed damages for a nervous shock as well. However, through various cases and the precedents, the courts have recognized the mental trauma as a pigeon-hole for compensation under the tort law. This article will get the reader to understand how the courts have and will consider various determinants for understanding to what extent the shock is caused and how much damages or compensation should be given to the affected party. All the guidelines are also meant to close the floodgate to the claims. Introduction

“In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability”.[1] Tort law has not been made by any written codified law. Instead, it is made up of precedents in the case laws which come to the courts. Tort means a civil wrong. Tort law is made up of various forms of faults done by any individual or a group of people, may be artificial. Fault is the whole point In a tort law. Tort law tries to bring the party who suffered to the original position, as they were, prior to the happening of that very wrong. It can be something like insurance, which also has a similar motive. Tort law aims at making good the loss suffered by the plaintiff, i.e. it seeks to make the plaintiff whole.[2] The tort law does not give any punishment to the person who has done wrong until that wrong was done with wrong intentions. It majorly gives compensation to the innocent party for what losses they have suffered for the negligent behaviour of the wrong doing party. The English legal system has however often said that including nervous shock in the purview of tort law will be a big controversy. Various judges and scholars have said the results of including nervous shock in the purview of tort law will have unwanted results. This is often called as nervous shock or mental trauma. In recent years the courts have begun to move away from this terminology and have begun to talk about ‘psychiatric illnesses rather than nervous shock.[3] This article will, through case laws will bring the development of nervous shock as an area of development, the tests which are used to determine the extent of shock and also to determine the compensation and inside, close the floodgates of claims.

For many years in the English legal system, the talk to include nervous shock in the tort was rejected by the courts because of the controversial nature of it. It was argued that if any injury can’t be seen, it can’t be shown to the courts and hence the damages can’t be claimed. Various scholars tagged it as less worthy to ask for compensation. However, with the development of the time, the courts have given recognition to the nervous shock. Lord Macmillan has given the elements that a plaintiff must prove in order to get damages for nervous shock.

Duty of care;
Breach of that duty;
That breach caused the shock;
The shock is not too remote.

Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability.[4] It was first seen in the case of McLoughlin v O’Brian.[5] It gave a three-part test in order to restrict the compensation. The distinction between the physical harm and the nervous shock is also important and it is discussed in the case of White v Chief Constable of South Yorkshire. It also discussed the problems of giving nervous shock a recognition due to the following reasons:

It said that there is a lot of evidential problems;
Opening of the floodgates;
The problem of posing liability on the defendant to give a lot of compensation, and will be unfair.

However, the Law Commission report in 1998 claimed that these reasons equally apply to physical harm as well. It also suggested that it is however not really possible to prove the kind of harm that the plaintiff is in- in a nervous shock.

Primary and Secondary Victims

Before we go and analyse the report of the Law Commission, it is important to understand the development of this field and how judges have placed the limitations in order to restrict the scope of the word ‘mental injury’. A very early case on this front is the case of Dulieu v White and sons, where Kennedy J gave a test to determine the liability of the defendant in a nervous shock case. The test is a two-fold test.

The degree to which the shock is presented in the courts should be foreseeable and
The shock must arrive from a reasonable fear that might cause physical harm.

This test made a distinction between a primary victim and a secondary victim in the sense that the party who is directly involved in an accident and has a reasonable fear of having a physical injury is a primary party and rest all are secondary victims.

But this test was reduced in the case of Page v Smith where the judges held that where the reasonable foreseeability can be proved, there “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. This means that the requirement for the plaintiff is to prove that they were in the purview of the physical injury and then they are directly eligible to get compensation for the nervous shock/ mental illness. But this may open the floodgates, if the nervous shock was not foreseeable.

But some well 2 decades after, the case of Hambrook v Stokes Bros[6] came where the judges said that the nervous shock can also come to the close relatives and friends of the victim and they can also claim the damages for the same. These people were said to be the secondary victims of the case. Now the judges have also included the proximity part while limiting the scope of the nervous shock liability.

The number of cases of this front were increasing at a rapid pace. Then came the case of Bourhil v Young where the counsels for the plaintiff had tried to expand the scope of the tests and were trying to establish that the person who is not at all related to the primary victim, nor is in proximity to the accident, or not even a prime witness to it, can also claim for the damages. But they were failed to do that.

So the final test for primary victims claiming the compensation under the nervous shock must prove that they were in the zone of physical danger and the secondary victims need to prove proximity and the relation between them and the primary victim.

Control mechanism

The courts have taken different approaches to evolve the concept of nervous shock as a tort. Like the case of McLoughlin v O’Brian where the House of lords was clear that the compensation can be given in this case but the split came out while deciding the test of liability. Some judges said that the liability should not only be based on foreseeability and the following factors should also be taken into account:

The class of plaintiff in the sense that the relation between the plaintiff and the primary victim.
Proximity in rime and space.
the means by which the psychiatric illness was caused – it must come through the plaintiff’s own sight or hearing of the event or its immediate aftermath; communication by a third party was not sufficient.

This test was given by Lord Wiberforce and afterwards, it was known to be ‘Alcock test’ and this test was used to control the number of claims. This test was also applied a decade later in many cases one of which was the case of Alcock v Chief Constable of South Yorkshire.[7] However, by applying this test the court said that the claim could not be allowed because the above conditions were not fulfilled. However, to my opinion, the House of Lords have taken a very narrow approach then what actually this test was. However it is also important to do so to stop the public from making such claims, but it can be allowed for those who saw a live telecast and seeing their loved once to die in front of them. The test is an ‘and’ criteria and not an ‘or’. It means that all the conditions need to be proven. One plaintiff in the Alcock case who saw two brothers of his dying, failed to prove his claim because he suffered from stress much after the incident took place.

However, the situation today is the same as it was made by the courts. These controls need to be taken into account while making claims of nervous shock. These mechanisms need to be taken into account to control the floodgates of claims.

Law Commission Reports

The law commission report suggested that the claims with regards to the secondary victims need to be restricted otherwise it would open the floodgates to the number of cases. At the same time, it should also work according to the judicial precedents and use of judicial powers to give justice to the innocent. The law commission also said that the proximity in terms of time and space should not be used. They said it after giving this example “How many hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother’s consequential psychiatric illness”[8] However it can be argued in both ways. However, to the floodgates argument, the commission said that the love and affection fold should be strictly used and to give more clarity, they gave a fixed list of relationships.

They accepted that the floodgate will be open by their reforms but then it said that the courts should look at the policy considerations to allow/reject those claims.

[1] Bourhill v Young [1943] AC 92

[2] Mullany, NJ and Handford, PR (1993), Tort Liability for Psychiatric Damage

[3] Napier, M and Wheat, K (1995) Recovering Damages for Psychiatric Injury

[4] Teff, H (1983) ‘Liability for Negligently Inflicted Nervous Shock’ 99 Law Quarterly Review 100

[5] [1982] 2 All ER 298

[6] [1925] 1 KB 141

[7] [1992] 1 AC 310

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This article has been written by Ritika Sharma, pursuing B.A. LL.B from Vivekananda Institute of Professional Studies, GGSIPU, Delhi. In this article, the concepts of absolute liability and strict liability has been discussed along with the differences of the same.

INTRODUCTION

The law of tort has been originated from the whole concept of English Common law. It has its roots within the same. The law of torts is actually the civil wrong which leads to civil damages. Since this law is not codified, it becomes important to rely upon the precedents and jurisprudence in order to understand these principles. There have been numerous notions which have been confusing and require a deep and clear understanding. The general rule of tort liability is that the person who causes damage should pay and should compensate. In some cases, the liability is raised on the third parties as well.

However, most of the principles of the law of torts originate from English common law while Indian courts have been successful in modifying the same to meet basic requirements. The two principles of absolute and strict liability are the ones which levy liabilities on the industrial and business aspects when there are commercial activities which actually cause the damages to the public.

STRICT LIABILITY

The rule of a Strict liability provides that if there is any commercial activity which can prove to be harmful; the same should not be carried on. The liability arises even when all necessary and essential precautions are being taken in order to prevent the damage.

The Strict liability is not just a concept but it is actually an imposition of liability on a party without a finding of fault and claimant need only prove that the tort occurred and that the defendant was responsible. The law of torts implies the strict liability rule to such situations wherein the conditions seem to be inherently dangerous.

Under the strict liability rule, the law makes people pay compensation for damages even if they are not at fault. In other words, people have to pay compensation to victims even if they took all the necessary precautions and infect permissions allowing such activities often include this principle as a pre-condition.

In the leading case of Rylands v. Fletcher, the Rule of Strict liability originated. The defendant owned a mill and to improve the supply of the water, he arranged a reservoir over there. The water escaped and damaged the mine of the plaintiff. The court disagreed upon the argument that the defendant was not at fault and explained the rule of strict liability. It said that when somebody keeps something on his property for his benefit, it should not escape and in case it escapes, the owner of that thing must compensate the victim even if he was not negligent.

In the case of the Meghalaya Energy Corporation v. Shri Sukendra Sangma, the court did not recognize the rule of strict and absolute liability in case of this enterprise which was engaged in hazardous and dangerous activity which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

ABSOLUTE LIABILITY

Absolute liability refers to a standard of legal liability which is found in tort and criminal law. In order to convict someone for an ordinary crime, a person should not only have to commit a criminal action but it is required to have a deliberate intention which is mens rea. A company is required not to engage in such activities which can prove to be extremely hazardous. In such cases, this type of company or any person engaging in such activity have to pay compensation as a mandatory remedy, whether or not such disaster was caused by its negligence.

The Supreme Court, in the M.C. Mehta vs Union of India, found that the principle of strict liability is inadequate in order to protect the rights of citizens and it replaced it with the principle of absolute liability principle. The incident of leakage of Oleum gas from a fertilizer plant of Shriram Food and Fertilisers Ltd. complex at Delhi caused irreparable damage to several people and the due to the prevalence of the concept of absolute liability, there was no defence which was provided to them. Article 21 of the Constitution declares that no person shall be deprived of his life or personal liberty except according to procedure established by law and this specific right is available to both citizens and non-citizens and hence the court wanted corporations to be made fully liable for future undeserved suffering of innocent citizens and held that a hazardous enterprise has an absolute non-delegable duty to the community.

In the case of Union Carbide Company vs. Union of India, which is popularly known as Bhopal Gas leak Tragedy, the Supreme Court held that Union Carbide Corporation, currently owned by Dow Chemical Co, was liable to pay compensation to the victims of the 1984 Bhopal gas tragedy and the curative petition was also denied.

THE DIFFERENCE

The distinction is clear between strict and absolute liability and was clearly mentioned by the Supreme Court in M.C. Mehta v. Union of India, where the court made a summarization as follows:

Only those enterprises shall be held liable, in absolute liability, which are involved in hazardous or the activities which are inherently.
The very escape of a dangerous thing from the person’s own land is not necessary. Absolute liability is applicable to those injured within the premise and outside the premise and the rule of Absolute liability does not have any exceptions, unlike the rule of Strict Liability.
The rule has been elaborated keeping in mind the case of Rylands v. Fletcher as it only applies only to the non-natural use of land, but absolute liability applies even to the natural use of land and if an individual tends to use a dangerous substance and if such substance escapes he shall be liable even though he has taken proper care.
The extent of damages actually depends upon the very magnitude and financial capability of the corporation It was also stated by the Supreme Court that the enterprise should be held to be under an “obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the highest standards of safety and security and if any harm results on account of such negligent activity, the enterprise or the institute must be held absolutely liable to compensate”.

REFERENCES

Franklin, Mark, Tort Law and Alternatives: Cases and Materials, University Casebook Series, ISBN-13: 978-1634593007
Gilead, Israel, On the Transformation of Economic Analysis of Tort Law, Journal of European Tort Law, Issue 3, 2017; Hebrew University of Jerusalem Legal Research Paper No. 17-26
Ryland v. Fletcher, (1868) LR 3 HL 330
M.C. Mehta vs Union of India, 1987 SCR (1) 819
Union Carbide Company vs. Union of India, (AIR 1987 SC 1086)
P. S. Atchuthen Pillai, The Law of Tort, Eastern Book Co, 8 Ed, 1987 [1]
Ratanlal & Dhirajlal, The Law of Torts, Butterworths

Tag: Tort Law

Distinction between Law of Tort, Contract, Quasi-Contract and Crime