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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Table of contents

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INTRODUCTION
DEFINITIONS
NATURE OF THE LAW OF TORT
TYPES OF TORT LAW
EVOLUTION OF TORT LAW IN INDIA
EVOLUTION OF TORT LAW IN UK
Ubi Jus IbiRemedium
RESEARCH METHODOLOGY
SIGNIFICANCE
CONCLUSION

ACKNOWLEDGEMENTS

I would like to sincerely thank the Sociology Teacher Mrs sridevi mam for giving me this
project on the HISTORICAL DEVELOPMENT OF TORT LAW IN INDIA COMPARING
WITH UK which has widened my knowledge on the scope and relevance of it in the Indian
Legal System. Her guidance and support has been instrumental in the completion of this
project.
I would also like to thank all the authors, writers, columnists and social thinkers whose ideas
and works have been made use of in the completion of this project.
My heartfelt gratitude also goes out to the staff and administration of DSNLU for the
infrastructure in the form of our library, that was a source of great help in the completion of
this project.
I also thank my friends for their precious inputs which have been very helpful in the
completion of this project.

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INTRODUCTION
A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to
suffer loss or harm resulting in legal liability for the person who commits the tortious act,
called a tort feasor. Although crimes may be torts, the cause of legal action is not necessarily
a crime, as the harm may be 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 prevail, the
.plaintiff in the lawsuit must show that the actions or lack of action was the legally
recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is delict. Law
is any rule of human conduct accepted by the society and enforced by the state for the
betterment of human life A tort is a civil law wrong for which the remedy is an action for
unliquidated damages and which is not exclusively the breach of contract or the breach of
trust, or the breach of other merely equitable obligation. The term tort was introduced into the
terminology of English law by the French speaking lawyers and judges of the courts of
Normandy and Angering kings of England. As a technical term of English law, tort has
acquired a special meaning as a species of civil injury or wrong. Till about the middle of the
seventeenth century tort was an obscure term, at a time when procedure was considered more
important than the right of an individual. The first British courts established in India were the
mayor's courts in the three presidency towns of Calcutta, madras, and Bombay. These courts
were established in the eighteenth century. The term tort was introduced into the
terminology of English Law by the French speaking lawyers and Judges of the Courts of
Normandy and Angering Kings of England. As a technical term of English law, tort has
acquired a special meaning as a species of civil injury or wrong. Till about the middle of the
seventeenth Century tort was an obscure term, 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 500 years, till 1852, when the Common Law
Procedure Act was passed and primacy of substance over the procedure gradually gained
firmer ground. Today the maxim as it stands is ubi jus ubi remedium, i.e. where there is
right there is remedy. Tort is the French equivalent of the English word wrong and of the
Roman law term delict. The word tort is derived from the Latin word tortum which means
twisted or crooked or wrong and is in contrast to the word rectum which means straight. It is
expected out of everyone to behave in a straightforward manner and when one deviates from
this straight path into crooked ways he is said to have committed a tort. Hence tort is a
conduct which is twisted or crooked and not straight. Though many prominent writers have
tried to define Tort, it is difficult to do so for varied reasons. The key reason among this
being, that the law of Torts is based on decided cases. Judges while deciding a case, feel their
primary duty is to adjudge the case on hand rather than to lay down wider rules and hence
they seldom lay down any definition of a legal term. Furthermore the law of tort is still
growing. If a thing is growing no satisfactory definition can be given.

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DEFINITIONS
A tort is a civil wrong for which the remedy is an action forUnliquidated 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- Salmond

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.-Winfield

Nature of the Law of Tort

Numerous attempts have been made to define a tort or tortious liability, with varying
degrees of lack of success. Winfields definition is designed to distinguish tortious liability
from other traditional legal categories such as contract or trust. It is not possible to assign any
one aim of the law of tort, which is not surprising when one considers that the subject
comprehends situations as disparate. Tort is concerned with the allocation of responsibility
for losses which are bound to occur in our society. It is obvious 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 person, damage to physical property, damage to financial
interests, 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 of
tort actions coming before the courts the claimant is seeking monetary compensation for the
injury he has suffered, and this fact strongly emphasises the function of tort in allocating or
redistributing loss. In many cases, 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. An injunction is the primary remedy sought, for example in cases of nuisance
and the so-called economic torts such as inducing breach of contract. Even when the claim
is for damages in respect of a completed wrong, the role of tort can only be squared in some
cases with the idea of compensation by giving that word an artificially extended meaning .In
few situations, where exemplary damages are awarded , the idea of compensation is dropped
altogether in favour of overt punishment but much more frequently there are substantial
awards of damages for matters like injury to reputation and interference with liberty, which
one cannot even begin to quantify in mathematical terms.
At the risk of repetition, we must again stress that is framing this definition Winfield was
not seeking to indicate what conduct is and what is not sufficient to involve a person in
tortious liability, but merely to distinguish tort from certain other branches of law. It is true
that a cause of action in modern law is merely a factual situation the existence of which
enables the claimant to obtain a remedy from the court1 so he is certainly not in the position
he was in 200 years ago having to choose the right form of action to fit his claim.
Winfields view that tortious duties exist by virtue of the law itself and are not dependent
1Letang v. Cooper(1965) Q.B. 232, per Diplock L.J.
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upon the agreement or consent of the persons subjected to them. I am under a duty not to
assault you, not to slander you, not to trespass on your land ,because the law says I am under
such a duty and not because I have agreed with you to undertake such a duty.

Types of Tort Law

Generally speaking, a tort is when one person or entity inflicts an injury upon another in
which the injured party can sue for damages. In tort lawsuits, the injured party referred to
as the plaintiff in civil cases (comparable to the prosecutor in a criminal case) seeks
compensation, through the representation of a personal injury attorney, from the defendant
for damages incurred (i.e. harm to property, health, or well-being).
Tort law determines whether a person should be held legally accountable for an injury against
another, as well as what type of compensation the injured party is entitled to. The four
elements to every successful tort case are: duty, breach of duty, causation, and injury. For
a tort claim to be well-founded, there must have been a breach of duty made by the defendant
against the plaintiff, which resulted in an injury.
Tort lawsuit are the biggest category of civil litigation, and can encompass a wide range of
personal injury cases - however, there are three main categories: intentional torts,
negligence, and strict liability

Intentional Torts
An intentional tort is when an individual or entity purposely engages in conduct that causes
injury or damage to another. For instance, striking someone in a fight would be consider an
intentional act that would fall under the tort of battery; whereas accidentally hitting another
person would not qualify as intentional because there was no intent to strike the individual
(however, this act may be considered negligent if the person hit was injured).
Although it may seem like an intentional tort can be categorized as a criminal case, there are
important differences between the two. A crime can be defined as a wrongful act that injures
or interferes with the interests of society. In comparison, intentional torts are wrongful acts
that injure or interfere with anindividuals well-being or property. While criminal charges are
brought by the government and can result in a fine or jail sentence, tort charges are filed by a
plaintiff seeking monetary compensation for damages that the defendant must pay if they
lose. Sometimes a wrongful act may be both a criminal and tort case.

Negligence
There is a specific code of conduct which every person is expected to follow and a legal duty
of the public to act a certain way in order to reduce the risk of harm to others. Failure to
adhere to these standards is known as negligence. Negligence is by far the most prevalent
type of tort.
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Unlike intentional torts, negligence cases do not involve deliberate actions, but instead are
when an individual or entity is careless and fails to provide a duty owed to another person.
The most common examples of negligence torts are cases of slip and fall, which occur when
a property owner fails to act as a reasonable person would, thus resulting in harm to the
visitor or customer.

Strict Liability
Last are torts involving strict liability. Strict, or absolute, liability applies to cases where
responsibility for an injury can be imposed on the wrongdoer without proof of negligence or
direct fault. What matters is that an action occurred and resulted in the eventual injury of
another person.
Defective product cases are prime examples of when liability is maintained despite intent. In
lawsuits such as these, the injured consumer only has to establish that their injuries were
directly caused by the product in question in order to have the law on their side. The fact that
the company did not intend for the consumer to be injured is not a factor.

Evolution Of Tort Law In India

In India the term tort has been in existence since pre independence era. The Sanskrit word
"Jimha"which means crooked was used in ancient Hindu law text in the sense of portions of
fraudulent conduct. Under the Hindu law and Muslim law tort had a much narrower
conception than the tort of the English 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 English law as found suitable to Indian
conditions and as modified by the acts of the Indian legislature. The law of torts in India
presently, is mainly the English law of torts which itself is based on the principles of the
common law of England. However the Indian courts before applying any rule of English law
can see whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application. Its origin is linked with the
establishment of British courts in India. The law of torts in India is mainly the English law of
torts which itself is based on the principles of the common law of England. This was made
suitable to the Indian conditions appeasing to the principles of justice, equity and good
conscience and as amended by the acts of the legislature. Its origin is linked with the
establishment of British courts in India.
The expression justice, equity and good conscience was interpreted by the Privy Council to
mean the rules of English Law if found applicable to Indian Society and circumstances. The
Indian courts before applying any rule of English law can see whether it is suited to the
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Indian society and circumstances. The application of the English law in India has therefore
been a selective application. On this the Privy Council has observed that the ability of the
common law to adapt itself to the differing circumstances of the countries where it has taken
roots is not a weakness but one of its strengths. Further, in applying the English law on a
particular point, the Indian courts are not restricted to common law. If the new rules of
English statute law replacing or modifying the common law are more in consonance with
justice, equity and good conscience, 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 be
on the same lines as in England. In M.C Mehta v. Union of India, 2, Justice Bhagwati said,
we have to evolve new principles and lay down new norms which will adequately deal with
new problems which arise in a highly industrialized economy. We cannot allow our judicial
thinking to be constructed by reference to the law as it prevails in England or for the matter of
that in any foreign country. We are certainly prepared to receive light from whatever source it
comes but we have to build our own jurisprudence.
During British rule, courts in India were enjoined by acts of parliament in the UK and by
Indian enactments to act according to justice, equity and good conscience if there was no
specific rule of enacted law applicable to the dispute in a suit. They departed from it when
any of its rules appeared unreasonable and unsuitable to Indian conditions. An English statute
dealing with tort law is not by its own force applicable to India.
It has also been held that section 9 of The Code of Civil Procedure, which enables the civil
court to try all suits of a civil nature, impliedly confers jurisdiction to apply the law of torts as
principles of justice, equity and good conscience. Thus the court can draw upon its inherent
powers under section 9 for developing this field of liability.
In a more recent Judgement of Jay Laxmi Salt Works (p) ltd v. State of Gujarat ,Sahai. J.,
observed: truly speaking the entire law of torts is founded and structured on morality.
Therefore, it would be primitive to close strictly or close finally the ever expanding and
growing horizon of tortuous liability. Even for social development, orderly growth of the
society and cultural refineness the liberal approach to tortious liability by court would be
conducive. Tort law is said to be a development of the old maxim ubi jus
ibiremedium (Every right needs a remedy). Are Indians simply possessed of fewer rights in
this important sphere? What are we to make of this underdevelopment regarding a
fundamental question in almost all systems of law- how to make the victim whole, how to
provide reparation? The law of torts as administered in India in modern times is the English
law as found suitable to Indian conditions and as modified by Acts of the Indian Legislature.
The law of torts or civil wrongs in India is thus almost wholly the English law, which is
administered as rules of justice, equity and good conscience. In English law, a tort is a civil
wrong, as distinguished from a criminal wrong. The term tort comes from the Latin tortus,
meaning crooked. Some wrongs are the concern of the state, 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 by one citizen against another, and tried in a court in front of a judge (only
rarely, in certain cases of defamation, with a jury). Certainly, some of the features of the law
2AIR 1988 SC 1037
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of torts are which were developed in England are absent in India. The Indian courts
therefore, apply those principles to match the situations in India. This means there is an
altercation from the British law to suit the Indian conditions. This fact is quite appreciated
because there is a difference in the societies and systems of Britain and India. Tort law is not
codified in India. This means whenever an exigency arises, a precedent shall be 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 been noted in the Union Carbide Casethat
Section 9 of the Code of Civil Procedure, which enables a Civil Court to try all suits of a civil
nature, impliedly confers jurisdiction to apply the law of torts as principles of justice, equity
and good conscience. This definitely is, providing a forum to try civil wrongs and making
them a miscellaneous category. This provides the courts with a wide array of jurisdiction.
Nuisance, negligence, etc. are wrongs of a different nature. It is definitely agreed that the
simpler torts need highlighting, but the problem again remains the same. Litigation. To
overcome the same there should be courts specifically set for these small offences or even
bigger ones, of civil nature.The development of tort law is evident in the law relating to
nuisance as well. Principles, such as the polluter pays principle are now being accepted
through various judicial pronouncements in India.
There has been a wide acceptance of cases going to the Supreme Court via writ petitions or
public interest litigations. This is a more effective and expeditious remedy available. How
often it has been seen, that the Supreme Court has admitted writ petitions under Article 32 of
the Constitution of India. The courts have awarded compensation in such cases as well. Thus,
the courts have tried to provide an effective forum and method to the citizens. Now, in
matters like environment, in which the claimants problems used to be the prerogative of the
State Pollution Control Board. It was upon the Board to approach the court. The situation has
changed now. The courts have recognized citizen suits in such matters too, thus opening a
new way for the common men to approach the courts. Another reason why the Supreme
Court has become a remedy provider is that, there are very few problems of locus
standis. Most of the cases have been dispensed off in a very tactful and justifiable manner.

Evolution of Tort Law in UK

English tort law concerns civil wrongs as distinguished from criminal wrongs in the law of
England and wales. The tort of negligence (English law law of tort, scots law, law of depict)
is a modern tort which has been developed by the judiciary in the UK since the case of
Donoghue vs. Stevenson. Few can doubt that the UK human right act, 1998, incorporating the
European convention on human rights and in particular the guarantee of the right to 1privacy
in article 8 of the convention into UK domestic law and also in requiring the judiciary.
Our courts have tended to look not to Europe but to the development of the common law in
the commonwealth and the united states but we are also now part of a complex of Europe an
institutions which have a political as well as an economic agenda and this has implications
for the development of tort law. Of most immediate concern for any student is the impact of
the European convention of human rights. The UK was the first state to ratify the European
convention on human rights and fundamental freedoms, signed at Rome in 1950. The
convention binds its signatories on an international plane to secure to citizens the right and
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freedoms defined in the convention but does not require that a state should incorporate the
convention in domestic law so as to require local courts to apply it.Tort law is concerned with
civil wrongs. Undoubtedly the largest (and most dynamic) area of law within tort is the law
of negligence. In the context of personal injury claims, the injured person will most likely sue
in negligence, although there are otherregimes which are also relevant. Negligence is a
relatively new tort, and it has been largely developed by the judiciary. Its expansion
throughout the late 19th and 20thcentury reflects the pressures which the rise of industrial and
urban society hasbrought to bear upon the traditional categories of legal redress for
interference with protected interests. Its flexibility means that it can be used by the courts to
findliability in novel contexts.
For the court to make a finding of negligence, the claimant must prove a number of things.
Firstly it must be shown that the defendant owed the claimant a duty of care The duty concept
was generalised in the famous judgment of Donoghue v Stevenson3in which the House of
Lords rejected the previous law in which liability for careless behaviour existed only in a
number of separate, specified situations, and embraced the idea of a general duty to take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour[i.e.] persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts oromissions which are called into question4. The most recent
authority on the question of establishing a duty of care is Caparo v Dickman5. A court will
find a duty of care if the claimant can show that the damage he suffered was foreseeable; that
there was proximity between himself and the defendant; and that in all the circumstances it
would be fair, just and reasonable to impose liability on the defendant. A denial of a duty of
care means that even if the defendant was at fault, and his fault caused the claimants loss,
there will be no liability it is akin to immunity from liability for the defendant against the
present and future claimants. The concept was used regularly in the early 1990s to deny
liability, especially in actions against public bodies, however since a ruling of the European
Court of Human Rights in 1998 English courts have been more reluctant to deny a duty of
care, preferring to decide the liability question at the breach stage after full argument on the
substantive merits of the individual case has been heard. Once the claimant has shown that
the defendant owed him a duty of care, he must prove that the defendant was at fault i.e.
that he is in breach of his duty of care. Determining whether the defendant was at fault is a
two-stage process. First, the court must determine the standard of care that the defendant
owed the claimant. The standard of care will be the standard that the reasonable person
would adopt in the profession, occupation or activity in question. In determining this
standard, the courts will often balance the degree of foreseeability or risk of harm against the
cost of avoiding the harm, and the benefits to society foregone if the activity in question is
not carried on. The standard is objective. In professional negligence cases (e.g. cases of
alleged medical negligence), the standard is that of a reasonably competent person in the
profession in question or the particular branch of it. In practice this means that the courts
defer substantially to the standards set by the profession itself and supported by a responsible
body of opinion. Setting the standard is a question of law. The court will then determine
whether the actions of the defendant himself reached this standard. This is a question of
3 (1932) AC 562
4 Ibid, p580
5[1990] 2 AC 605
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fact.The claimant must then show that the defendants breach of duty caused the damage that
he suffered. The test is a but-for test but for the defendants tort, would the claimant have
suffered the loss or damage? If the answer is no, then the causation test is satisfied. If it is
yes, the defendant will not be liable, even if he has acted negligently. This will often be a
straightforward issue; however the courts have recently been faced with difficult causation
cases, most notably in the context of mesothlioma contracted as a result of exposure to
asbestos. A lack of knowledge of the etymology of this particular cancer meant that the
claimant was unable to say when exactly he contracted the disease; or indeed whether it is
caused by a single fibre of asbestos, or a build-up in his lungs of asbestos fibres. In Fairchild
the claimants had been negligently exposed to asbestos by a number of employers/occupiers
of properties where they had worked, and they were unable now to say which breach of duty
had caused the contraction of mesothelioma. The House of Lords response was to relax the
causation rules. This will be dealt with later in the paper, for now it suffices to say that this
exception to normal causation rules has been strictly confined. Even if the claimant satisfies
the but-for test he must show that the damage he suffered is not too remote from the
defendants negligence. For example, the court may find that it was in fact the act of a third
party, or the claimant himself which caused the damage, i.e. this act has broken the chain of
causation between the defendants act and the damage suffered. The defendant will also not
be liable for a kind of damage which he could not reasonably have foreseen. Finally, the
damage suffered by the claimant must be a type of damage that can be recovered under the
law of negligence. For example, where the claimant has suffered the loss of a chance of
avoiding physical injury, this loss will not be compensable. The issue arose in Gregg v Scott.
The claimants GP negligently failed to diagnose that he suffered from non-Hodgkins
lymphoma. After the cancer was subsequently diagnosed, expert evidence was that the
negligent delay in diagnosis reduced the claimants chance of survival for a five-year period
from 42% to 25%. The House ofLords denied that the claimant had suffered a compensable
injury in this case.

Ubi Jus IbiRemedium

Ubi Jus IbiRemedium is a Latin legal maxim which means where there is a right there is a
remedy. The basic principle contemplated in the maxim is that, when a persons right is
violated the victim will have an equitable remedy under law. The maxim also states that the
person whose right is being infringed has a right to enforce the infringed right through any
action before a court.

RESEARCH METHODOLOGY
The researcher will be doing doctrinal study on this topic by taking help of various books
based on this topic and reading the judgement of the cases decided on this basic.

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SIGNIFICANCE
The significance of studying this concept is that the researcher will be able to come across
various change in the pattern of laws evolved after such a long time and to prepare an
analogy based on both the countries. Also, the researcher will be able to come across various
flaws in the laws and the ways it could be made better.

CONCLUSION
Thus to conclude, law of torts is a branch of law which resembles most of the other branches
in certain aspects, but is essentially different from them in other respects. Although there are
differences in opinion among the different jurists regarding the liability in torts, the law has
been developed and has made firm roots in the legal showground. There are well defined
elements and conditions of liability in tort law.The law of torts in India is definitely not
unnecessary but merely requires enactments to make it more ascertainable. Failure of
aggrieved persons to assert their legal rights is perhaps to be ascribed not merely to
insufficient appreciation of such rights but to other causes as well, e.g., difficulties in proving
claims and obtaining trustworthy testimony, high court fees, delay of courts. The elimination
of difficulties which obstruct aggrieved parties in seeking or obtaining remedies which the
law provides for them is a matter which is worthy of consideration. If these lacunae are
removed, India could also witness a growth in tort litigation.
This bough of law enables the citizens 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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