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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA, PUNJAB

Emerging Scope of Law of Torts in India

SUBMITTED TO- SUBMITTED BY-

Dr. Jaswinder Kaur Hrishabh Khatwani

Assistant Professor of Law of Torts Roll No. 19021

Rajiv Gandhi National University of Law Group No. 5

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ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound gratitude and deep
regard to Dr Jaswinder Kaur (Assistant Professor of Torts) for her guidance and
valuable feedback and constant support throughout the duration of project. Her
suggestions were of monumental help in the rough work of my project.

I would also like to express my gratitude to Rajiv Gandhi National University of Law,
Patiala for giving me the topic that enriched my knowledge. I also like to thank the
library staff for constant support.

Lastly I am thankful to my parents and friends for their constant support and
coordination in the completion of the research work.

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TABLE OF CONTENTS
ACKNOWLEDGEMENT…………………………………………………………………2

TABLE OF CONTENTS…………………………………………………………………3

INTRODUCTION………………………………………………………………………...4

HISTORY OF LAW OF TORTS………………………………………………………..6

CONSTITUENTS OF TORT……………………………………………………………8

SCOPE OF LAW OF TORTS………………………………………………………….11

LAW OF TORTS IN INDIA……………………………………………………………..12

LANDMARK JUDGEMENTS…………………………………………………………..14

TORTIUOS LITIGATION……………………………………………………………….17

CONTROVERSIES……………………………………………………………………..18

CONCLUSION…………………………………………………………………………..19

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INTRODUCTION

Law is the system of rules which a particular country or community recognizes as


regulating the actions of its members and which it may enforce by the imposition of
penalties. The Third New International Dictionary from Merriam-Webster defines law
as: "Law is a binding custom or practice of a community; a rule or mode of conduct
or action that is prescribed or formally recognized as binding by a supreme
controlling authority or is made obligatory by a sanction (as an edict, decree, rescript,
order, ordinance, statute, resolution, rule, judicial decision, or usage) made,
recognized, or enforced by the controlling authority." 1

Laws are generally classified as Public and Private law. Public law is that part of law
which governs relationships between individuals and the government, and those
relationships between individuals which are of direct concern to society. Public law
comprises constitutional law, administrative law, tax law and criminal law,2 as well as
all procedural law. In public law, mandatory rules prevail. Private law is that part of a
civil law legal system which is part of the jus commune that involves relationships
between individuals, such as the law of contracts or torts3 and the law of obligations.

A tort, in common law jurisdictions, is a civil wrong4 that causes a claimant to suffer
loss or harm resulting in legal liability for the person who commits the tortious act. It
can include the intentional infliction of emotional distress, negligence, financial
losses, injuries, invasion of privacy, and many other things.

Tort law, where the purpose of any action is to obtain a private civil remedy such as
damages, may be compared to criminal law, which deals with criminal wrongs that
are punishable by the state. Tort law may also be contrasted with contract law which
also provides a civil remedy after breach of duty; but whereas the contractual
obligation is one chosen by the parties, the obligation in both tort and crime is

1
Third New International Dictionary, Merriam-Webster, Inc., Springfield, Massachusetts.
2
Elizabeth A. Martin (2003). Oxford Dictionary of Law (7th ed.). Oxford: Oxford University Press. ISBN
0198607563.
3
Mattei, Ugo; Bussani, Mauro (18 May 2010). "The Project - Delivered at the first general meeting on July 6,
1995 - The Trento Common Core Project". The Common Core of European Private Law. Turin, Italy: Common
Core Organizing Secretariat, The International University College of Turin. Retrieved 8 September 2011
4
Glanville Williams, ... providing grounds for lawsuit. Learning the Law. Eleventh Edition. Stevens. 1982. p. 9

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imposed by the state. In both contract and tort, successful claimants must show that
they have suffered foreseeable loss or harm as a direct result of the breach of duty. 5

5
Under the Contracts (Rights of Third Parties) Act 1999 a person may enforce a contract even when they are
not a party to it

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HISTORY OF LAW OF TORTS

Roman law contained provisions for torts in the form of delict, which later influenced
the civil law jurisdictions in Continental Europe, but a distinctive body of law arose in
the common law world traced to English tort law. The word 'tort' was first used in a
legal context in the 1580s,6 although different words were used for similar concepts
prior to this time.

Torts and crimes at common law originate in the Germanic system of compensatory
fines for wrongs, with no clear distinction between crimes and other wrongs. In
Anglo-Saxon law, most wrongs required payment in money or in kind (bot, literally
'remedy') to the wronged person or their clan.7 Wīte (literally 'blame, fault') was paid
to the king or holder of a court for disturbances of public order. Weregild, which was
a murder fine based on a victim's worth, was intended to prevent blood feuds.8 Some
wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder,
arson, treason against one's lord), that is, unable to be compensated, and those
convicted of a botleas crime were at the king's mercy.9 Items or creatures which
caused death were also destroyed as deodands. Assessing intention was a matter
for the court, but Alfred the Great's Doom Book did distinguish unintentional injuries
from intentional ones, whereas culpability depended on status, age, and gender.

After the Norman Conquest, fines were paid only to courts or the king, and quickly
became a revenue source. A wrong became known as a tort or trespass, and there
arose a division between civil pleas and pleas of the crown. The petty assizes were
established in 1166 as a remedy for interference with possession of freehold land.
The trespass action was an early civil plea in which damages were paid to the victim;
if no payment was made, the defendant was imprisoned. The plea arose in local
courts for slander, breach of contract, or interference with land, goods, or persons.

6
The word is derived from Old French and Anglo-French "tort" (injury), which is derived from Medieval Latin
tortum,
7
Medieval Sourcebook: The Anglo-Saxon Dooms, 560–975. Internet Medieval Source Book by Fordham
University.
8
Medieval Sourcebook: The Anglo-Saxon Dooms, 560–975. Internet Medieval Source Book by Fordham
University.
9
Bruce R. O'Brien, "Anglo-Saxon Law", in The Oxford International Encyclopedia of Legal History, vol. 1
(Oxford: Oxford UP, 2009), 179.

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Although the details of its exact origin are unclear, it became popular in royal courts
so that in the 1250s the writ of trespass was created and made de cursu (available
by right, not fee); however, it was restricted to interference with land and forcible
breaches of the king's peace. Later, after the Statute of Westminster 1285, in the
1360s, the "trespass on the case" action arose for when the defendant did not direct
force. As its scope increased, it became simply "action on the case". The English
Judicature Act passed 1873 through 1875 abolished the separate actions of trespass
and trespass on the case.

In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of
fire; additionally, strict liability was imposed for the release of cattle. Negligently
handling fire was of particular importance in these societies given capacity for
destruction and relatively limited firefighting resources. Unintentional injuries were
relatively infrequent in the medieval period. As transportation improved and carriages
became popular in the 18th and 19th centuries, however, collisions and
carelessness became more prominent in court records.

The law of torts for various jurisdictions has developed independently. In the case of
the United States, a survey of trial lawyers pointed to several modern developments,
including strict liability for products based on Greenman v. Yuba Power Products, the
limitation of various immunities (e.g. sovereign immunity, charitable immunity),
comparative negligence, broader rules for admitting evidence, increased damages
for emotional distress, and toxic torts and class action lawsuits. However, there has
also been a reaction in terms of tort reform, which in some cases have been struck
down as violating state constitutions, and federal preemption of state laws.10

Modern torts are heavily affected by insurance and insurance law, as most cases are
settled through claims adjustment rather than by trial, and are defended by insurance
lawyers, with the insurance policy, a deep pocket limit, setting a ceiling on the
possible payment.

10
American Association for Justice (1996).

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CONSTITUENTS OF TORT

The law of torts is fashioned as an instrument for making people adhere to the
standards of reasonable behaviour and respect the rights and interests of one
another. This it does by protecting interests and by providing for situations when a
person whose protected interest is violated can recover compensation for the loss
suffered by him from the person who has violated the same. By interest here is
meant a claim, want or desire of a human being or group of human beings seeks to
satisfy, and of which, therefore the ordering of human relations in civilized society
must take account. It is however, obvious that every want or desire of a person
cannot be protected nor can a person claim that whenever he suffers loss he should
be compensated by the person who is the author of the loss. The law, therefore,
determines what interests need protection and it also holds the balance when there
is a conflict of protected interests.

Every wrongful act is not a tort. To constitute a tort,

# There must be a wrongful act committed by a person;

# The wrongful act must be of such a nature as to give rise to a legal remedy and

# Such legal remedy must be in the form of an action for unliquidated damages.

I. Wrongful Act

An act which prima facie looks innocent may becomes tortious, if it invades the legal
right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act
complained of should, under the circumstances, be legally wrongful, as regards the
party complaining. That is, it must prejudicially affect him in some legal right; merely
that it will however directly, do him harm in his interest is not enough.

Liability for tort arises, therefore when the wrongful act complained of amounts either
to an infringement of a legal private right or a breach or violation of a legal duty.

II. Damage

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In general, a tort consists of some act done by a person who causes injury to
another, for which damages are claimed by the latter against the former. In this
connection we must have a clear notion with regard to the words damage and
damages. The word damage is used in the ordinary sense of injury or loss or
deprivation of some kind, whereas damages mean the compensation claimed by the
injured party and awarded by the court. Damages are claimed and awarded by the
court to the parties. The word injury is strictly limited to an actionable wrong, while
damage means loss or harm occurring in fact, whether actionable as an injury or not.

The real significance of a legal damage is illustrated by two maxims, namely,


Damnum Sine Injuria and Injuria Sine Damno.

(i) Damnum Sine Injuria (Damage Without Injury)

There are many acts which though harmful are not wrongful and give no right of
action to him who suffers from their effects. Damage so done and suffered is called
Damnum Sine Injuria or damage without injury. Damage without breach of a legal
right will not constitute a tort. In Gloucester Grammar School Master Case , it had
been held that the plaintiff school master had no right to complain of the opening of a
new school. The damage suffered was mere damnum sine injuria or damage without
injury.

(ii) Injuria Sine Damno ( injury without damage)

This means an infringement of a legal private right without any actual loss or
damage. In such a case the person whose right has been infringed has a good
cause of action. It is not necessary for him to prove any special damage because
every injury imports a damage when a man in hindered of his right. It is sufficient to
show the violation of a right in which case the law will presume damage. Thus in
cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere
wrongful act is actionable without proof of special damage. The court is bound to
award to the plaintiff at least nominal damages if no actual damage is proved. This
principle was firmly established by the election case of Ashby v. White, in which the

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plaintiff was wrongfully prevented from exercising his vote by the defendants,
returning officers in parliamentary election. The candidate for whom the plaintiff
wanted to give his vote had come out successful in the election. Still the plaintiff
brought an action claiming damages against the defendants for maliciously
preventing him from exercising his statutory right of voting in that election. The
plaintiff was allowed damages by Lord Holt saying that there was the infringement of
a legal right vested in the plaintiff.

III. Remedy

The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or
‘there is no wrong without a remedy’. If a man has a right, he must of necessity have
a means to vindicate and maintain it and a remedy if he is injured in the exercise or
enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want
of right and want of remedy are reciprocal.

Where there is no legal remedy there is no wrong. But even so the absence of a
remedy is evidence but is not conclusive that no right exists.

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SCOPE OF LAW OF TORTS

The law of torts has developed and expanded with the development of the societies.
The most primitive tort was the tort of trespass which provided remedies, when there
was a direct interference in the possession of land. However, with the further
development new interaction came into being where there were damages in diverse
situations and were covered under principles of liability recognised under this branch
of law. Therefore, the courts have recognised these situations as tort at the different
stages of history because of prevalence of certain factors. These have been enlisted
as under:

 Industrialisation
 Urbanisation
 Professionalism
 Industrial hazards
 Scientific and Technological Advancement

The nature of liability is also expanding because of these developments like the
every presence of motor vehicle is being taken as hazard and the Motor Vehicle Act
recognises strict liability for an accident asking one of the motor vehicle to some
extent.

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LAW OF TORTS IN INDIA

The law of Tort in India is developed and evolved from the law of Torts in UK. Most
popularly known as “judge made law” this law does not come from a statute and is
not codified. Irrespective of this, it has been in existence over a number of years,
however the instances for cases under tort have been reducing. Compared to the
number of cases under Tort law filed in the UK and USA, the Tort litigation in India is
low. Although a helpful form of law, many reasons can be attributed to the lower
amount of Tort cases, mainly because it is believed that cases under Torts are not
pursued as vigorously as they are in UK and USA.

The Indian law of Tort is shaped after the principles of Tort law developed in UK. In
fact, most of the landmark judgments used in an action of Tort in India are from the
House of Lords / Courts in England. The cases of Tort in India are tried in Civil
courts and the relief includes damages by way of monetary compensation or an
order for injunction or restitution.

Torts and India

It has often been discussed whether the law of torts in India is necessary or not. The
courts in India have often taken the stand that Tort law is essential in India and is
conducive for the growth and development of the society. The courts and the
government have recognized the importance of torts in their rulings by rewarding
exemplary damages in case of negligence, providing compensation to the victims of
rape, recognizing governmental torts i.e. torts by government employees. However,
the knowledge of Torts and its use is not very popular among the general public,
primarily because it is not codified. It is hence essential to highlight the basic
principles and concepts of Torts where a person can understand his rights and
liabilities under the Tort laws.

Development of Torts in India

The Supreme Court of India has through its numerous landmark judgements helped
shaped the law of Torts in India. It has also been observed a number of times, that
there is a need to codify the law of Tort in order to facilitate its greater use. The
principles of Torts have also been applied in newer legislations such as the

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Environment Protection Act, 1986, The Consumer Protection Act 1986, The Human
Rights Protection Act 1988, The Motor Vehicles Act, 1988. However, it is still
observed that the branch of Torts as a whole is still growing and developing in India
as compared to the development of Torts in countries like UK and USA.

However, this should not be interpreted as if the courts are not recognizing or
entertaining genuine claims under tort. Hence, it can be said that a stronger base for
a codified or a more developed Tort law can be established in India by rigorously
arguing the cases under Tort, making people aware of this branch of law where
relief can be sought and gradually developing this area of Law.

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LANDMARK JUDGEMENTS

Indian courts, in some landmark judgments have applied and explained various
doctrines of law of torts that are prevalent in common law countries. The criteria of
cause-in-fact and foreseen- ability have been explained in many judgments.3 Courts
have used the negligence criteria, as a basis of liability in most of the tort cases. This
is particularly true for the motor accident cases. The question 'what constitutes a
negligent act?' has been answered at length in many interesting judgments by Indian
courts. The cases of motor accidents constitute the major bulk of tort cases in India.
In some very recently adjudicated cases, though, the scope of the law of torts has
been expanded to include the cases of violation of personal liberty, fundamental
rights, illegal detentions, and state liability for negligent behaviour of its officials.
Rules regarding damage payments by injurers to victims are called liability rules. A
liability rule typically specifies whether and how much damage (liability) payments
are to be made by the injurer(s) to the victim(s) of an accident. For example, the rule
of negligence holds an injurer liable for the accident loss only if he was negligent,
notwithstanding the level of care taken by the victim. The rule of negligence with the
defense of contributory negligence holds an injurer liable if and only if he was
negligent and the victim was not. In India, this rule requires proportional sharing of
liability when both parties were negligent. That is, the compensation that the victim
receives gets reduced in proportion to his or her negligence. The rule of strict liability
always holds the injurer liable irrespective of the care taken by the two parties. Under
the rule of strict liability with the defense of contributory negligence, the injurer can
escape liability only by showing that the victim's negligence contributed to the harm, i
e, it is the injurer who is held liable except when the victim was negligent.

CASE STUDY

M.C. Mehta v. Union of India originated in the aftermath of oleum gas leak from
Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after
the infamous Bhopal gas leak and created a lot of panic in Delhi. One person died in
the incident and few were hospitalized. The case lays down the principle of absolute
liability and the concept of deep pockets. the High Court was directed to nominate

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one or more Judges as may be necessary for the purpose of trying such actions so
that they may be expeditiously disposed of. Simply because the gas caused death
and many people were hospitalised.

Bhim Singh v. State of Jammu and Kashmir, 1985

On 17 August 1985 Bhim Singh was suspended from the opening of the budget
session of the Jammu and Kashmir Legislative Assembly that was scheduled for 11
September. He subsequently challenged the suspension in the Jammu and Kashmir
High Court. After his suspension was stayed by High Court on 9 September, Bhim
Singh left Jammu for Srinagar to attend the Legislative Assembly session. En route
at 3:00 am on 10 September, he was intercepted by the police at Qazi Kund, 70 km
from Srinagar. He was taken away by the police and kept prisoner at an undisclosed
location. After attempts to locate him proved futile his wife and advocate Jayamala
then moved the court to locate Bhim Singh. On 13 September, the court ordered the
inspector general of the police to inform Jayamala where her husband was being
held in custody. Only after this was Bhim Singh brought before a magistrate for the
first time on 14 September. The court found that Bhim Singh was not produced
before the magistrate nor sub judge who issued the police orders of remand and that
the police obtained the orders in surreptitious circumstances at the residence of the
magistrate and after hours from the sub judge. The Supreme Court judge, O.
Chinnappa Reddy criticized the conduct of the magistrate and sub judge stating that
they had no concern for the subject out of either casual behavior or worse that they
had potentially colluded with the police who had deliberately acted mala fide. The
court ruled that there "certainly was a gross violation of Shri Bhim Singh's
constitutional rights" and condemned the "authoritarian acts of the police." The
judges though stated that the police were but minions and that they were in no doubt
that the top levels of the Government of Jammu and Kashmir where ultimately
responsible.

The Supreme Court in a landmark judgement that impacted tort law in India,
awarded Bhim Singh a compensation of fifty thousands rupees for his illegal
detention and false imprisonment by the police.[79][80] Bhim Singh had left jail with a

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fractured leg and claimed during his false imprisonment the police and state
agencies had made an attempt on his life.[

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TORTIUS LITIGATION

Despite being often cited as a litigious country, the rate of litigation is low, due to
problems such as long delays, heavy expenses and meagre damage awards. There
has apparently been an increase in litigation over the past years, especially with
cases involving the government. This has been said to be due to India’s socio-
economic growth and the resultant sensitisation regarding legal rights.

Difficulties in the legal system

The delay in delivery of justice is a major problem plaguing India. This has been
attributed to reasons such a low judge to population ratio (1 judge per 100,000
capita, with a small number of courts available), as well as poor administrative
governance.

Outmoded procedural laws allow for delaying tactics, such as interlocutory appeals
and stay orders. The government has also been accused of employing delay tactics
whenever it is a litigant, appealing even when the chance of success is remote. As a
result, the system appears to resemble a "sunk cost auction", where litigants invest
ever-increasing amounts to stave off higher losses.

Reforms

Due to the problems noted above, it has been stated that reformation lay with the
parliamentarians and legislators. Structural reforms are to be brought about by
amendments to legislation, while operational reforms can only be brought about by
"a change in mindset"

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CONTROVERSIES

Absolute liability

One of the controversies in Indian tort law concerns the rule on absolute liability. The
extremely strict approach, where even acts of God are not recognised as a defence
is severely criticised especially since it disregarded the "generally accepted
parameter of minimum competence and reasonable care". The implementation of
such a rule endangers the growth of science and technical industries, as investors
have to take the risk of liability given that there is no defence to the rule.

Judicial activism

The judiciary has been criticised for being overly activist and overstepping its
jurisdiction. By creating constitutional torts, they are accused of usurping both
legislative and administrative functions. Controversy further arose when judges
began to read such obligations of the state into Article 21 of the Indian Constitution
to impose vicarious liability on the state. However, such judicial activism in India has
been used for "achieving social and distributive justice."

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CONCLUSIONS

Under the Hindu law and the 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 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 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 o the courts in India to reject the outmoded rules of
common law and to apply the new rules. For example, the principles of English
statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in
India although there is still no corresponding Act enacted by Parliament in India.

The development in Indian law need not be on the same lines as in England. In M.C.
Mehta v. Union of India , 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.

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

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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.

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