Law of Torts and its Different Mode: A Critical Analysis

INTRODUCTION

In common sense the law of torts is the branch of law controlling the behavior of society. It is growing branch of law and its main aim is to define individual’s rights and duties in the light of prevalent standards of reasonable conduct and public convenience. It provides pecuniary remedy for violations done against the private rights of an individual. The principle aim of the law of torts is for providing compensation to victims or their dependents¹. The literal meaning of tort is that any wrongful or illegal by which one’s legal rights are violated. Dr. Winfield says that tortious liability arises from the breach of a duty primarily fixed by the law, this duty is towards persons generally and its breach is redressible by an action for unliquidated damages². Similarly, Salmond says that ‘Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contact or the breach of a trust or other merely equitable obligation’.

In Mersey Docks Harbour Board v/s Gibbs³ held that in the absence of anything showing a literary intention in the statutes which creates such corporations, the true rule of construction is that the legislature intended that the liability of the corporation this substituted for individuals should, to the extend of the corporate funds be co-extensive that imposed by the general law on the owners of similar works. It followed therefore, that these corporations could be made liable for the torts committed by their servants. But the liability did not extend to the departments of government which were not corporations. It may be possible that notwithstanding their corporate existence they may yet be considered to be agents or servants of the Crown.

In historical background of law of tort, earlier stages common law was primarily concerned with remedies and not with rights and duties. Under the system of writs, the plaintiff had to comply with a formality of obtaining a writ from the chancellor of the exchequer for instituting a suit against the defendant in common law court. If the wrong called for a remedy the chancellor would issue a writ entitling the plaintiff to file a suit against the defendant in the common law court. However, if the wrong complained of was not recognized as wrongful i.e., tort the chancellor would refuse to issue a writ and, in that case, plaintiff had not remedy though he might have a cause of action against the defendant. In other words, meant the plaintiff could not move court without a writ having being issued by the chancellor for that purpose. In due course, an evolution in the writ system was observed. A serious attempt was made to remove the discrepancies of the exiting by Common Law Procedure Act 1852 thereby; the system of writs was improved so as to give the primary to writs of the plaintiff rather than the formality of writ. This does not however, mean that the writ system was abolished. Instead, its procedure was changed. Now it was not necessary for the plaintiff to mention any particular form of action (i.e., writ) under which his causes of action was covered⁴. The maxism ‘injuria sine damnum’ and ‘damnum sine injuria’, the first maxim based on legal injury, this is a legal injury caused to the plaintiff without any physical injury. This maxim literally means violation of a legal right without causing any harm i.e., physical or any pecuniary damage to the plaintiff, therefore this maxim is for the legal wrongs which are actionable if the person’s legal right has been violated, because ‘damnum sine injuria’ refers to the damages suffered by the plaintiff but no damage is being caused to the legal rights as there is no violation⁵. However, consequent to the passing Judicature Act, 1873 the writ system was completely abolished and the plaintiff could file his plaint directly in the court without the requirement of writ or a prior permission from the chancellor. The modified system was based on the principle that where a plaintiff has right, he must have means to vindicate and maintain it, and a remedy should be available to him in case his injured due to violation of his right by the defendant⁶.

Dr. Winfield was of the view that there as greater scope for the development of law of torts if it remained uncodified⁷. However, certain specific area of torts such as contributory negligence, indemnity among join tort feasors etc. have directly been codified on the recommendation made by the law reforms committees appointed by lord chancellor from time to time⁸. The creation of new torts from time to time evinces that whenever there has been an unjustified interference in the right of a person, the courts have come forwarded to provide remedy for the same.

TORTIOUS LIABILITY AND THE STATE

The liability of the Union and the states is the same as that of the Dominion and the Provinces of India before the Constitution came into force. But this however, is subject to legislation by the parliament or the legislatures of the states. If we are driven back to the provisions of the Government of India Act 1858, by which the Crown assumed sovereignty over the territories in India which till then where under these provisions not only the contractual obligations but all liabilities then exiting and all liabilities to be incurred thereafter by the East India Company were chargeable on the revenues and could be enforced by suit as if the assets belonged to the Company. There is no provision in any of the Charter Act exiting the immunity which the Crown in England enjoyed in respect of torts to the Company as it was a corporation having an independent existence and bearing no relationship of servant or agent to the Crown. It is clear from a judgment of Dhackjee Dadajee v/s The East India Company⁹ that before the Charter Act 1833, no distinction was made between acts committed by the company in its political capacity and acts done by it in the exercise of its commercial activities. After the Act of 1858, there came the judgment in Peninsular and Oriental Steam Navigation Company v/s Secretary of State¹⁰ case and much of the conflict of judicial opening in later decisions has arisen from certain expressions used in the judgment in the case. The Actual Judgment in the case was that the secretary of the state for India in council was liable for damages occasioned by the negligence of the government if the negligence was such as would render an ordinary employer liable. The Court pointed out that the East India Company was not sovereign though, it exercised sovereign functions and therefore, was not entitled to the immunity of the sovereign. Though, certain sovereign powers were delegated to the Company, the servants of the Company were not public servants. The Court observed that But where an act is done or a contract is entered into, in the exercise of powers usually called sovereign powers by which we mean powers which cannot be lawfully exercised except by a sovereign or private individual delegated by a sovereign to exercise them, no action will lie¹¹.

INDIAN SCENARIO AND TORTIOUS LIABILITY

The ancient Hindu law of torts, however differed from the present law of tort in one distinct aspect. It recognized right to compensation only in cases where plaintiff suffered monetary loss and not in other cases like assault, adultery, false imprisonment, defamation and insult etc., which were regarded as punishable offences and did not give rise to cause of action in torts. It must, however be stated that the modern law of torts in India is based on English law of torts with necessary modification to suit the Indian conditions¹². The main sources of ancient hindu law i.e., ‘smritis the code of manu and yajnavalkya’ with its commentaries compelled by narada, vyasa, brihaspati and katyayan furnish a detailed account of law of private wrong and damages prevalent in ancient India. The ancient Hindu law recognizes the institution of King and state which had complete control over its subjects. The entire scheme of civil and criminal law has been described by manu under eighteen heads¹³, such as gifts, sale, assault, theft, partnership, robbery, and defamation etc., the right to recover compensation was recognized in three cases namely (1) bodily injuries (2) damage caused to crops by trespass of cattle (3) damage caused to goods whether intentionally or otherwise¹⁴. In early time in India the numbers of cases under law of torts were very limited and specified, but due to gradually development of science and technology and advent to hazardous industrial operation, adulteration, commercialization, consumerism etc. have contributed towards the expansion of the scope of tortious liability.

When the Constitution was framed, the question to what extent if any, the Union and the States should be made liable for the tortuous liability of their servants or agents was left for future legislation. The point for consideration therefore, is on what lines the legislation should proceed. This indeed, is a difficult question of demarcating the line up to which the state should be made liable for the tortuous liability. It involves undoubtedly a nice balancing of considerations so as not to unduly restrict the sphere of the activities of the state and at the same time to afford sufficient protection to the citizen. Even conservative countries like England, realize that the law should progress in favour of the subject in the context of a welfare state and should not remain stagnant. The Liberalization of the law in England and other countries should not be ignored in framing the law in this behalf. India also must formulate the law suitably having regard to the changed conditions and the provisions of our Constitution.

SOME OTHER MODES OF TORTIOUS LIABILITY

1.  It is an intellectual property rights, which is the product of human mind and intellect. Intellectual property in its literal sense, means the things which emanate from the exercise of human brain¹⁵. It is the product emerging out of the intellectual labour of a human being. It involved the visual expression of a mental conception the work of both brain and hand¹⁶. Intellectual property means the legal rights which results from intellectual activity in the literary, industrial, scientific and artistic fields. The Universal Declaration of Human Rights, 1948 clearly states that “everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic protection of which he is the author”¹⁷. Article 1, Section 8 of the United States Constitution embodies provision for the protection of intellectual property¹⁸. Violation of any intellectual property rights i.e., copyrights, trademarks, patents rights, geographical indication of goods, design manipulation, farmer’s rights, plant varieties and violation of rights under the Biological Diversity Act etc. are both civil as well as criminal wrong, for which under law of torts a suit for compensation can be file before civil court.

2.  It is a right to privacy, a citizen has a right to safeguard the privacy of his own, his family, motherhood, child bearing, procreation, education and marriage among other matter. None can publish anything concerning the above matter without his consent whether truthful or otherwise and whether laudatory or critical. If he does so he would be violating the right to the person concerned and would be liable in an action for damage¹⁹. Besides, this a female who is the victim of kidnapping, abduction, sexual assault or alike of offence should not be disclosed with her name, if so then she will be entitled to get the compensation against such disclosure. Right to Privacy cannot be as a claim for compensation, where disclosure is indispensable for a large public interest²⁰.

3.  It is under Indian Constitution, at the present moment, the liability of the Union and the States in respect of Contracts, Property etc, is not a doubt , but the law relating to the liability of the Union and the States for tortious acts of uncertainty. It becomes necessary therefore, to examine the existing law with a view to determine that extent of the liability of the Union and the States for tortuous acts to be sued is regulated by Article 300 of the Constitution. It provides; The Government of India may sue or be sued by the name of the Union of India and the government of state may sue or be sued by the name of the state and may subject to any provisions which may be made by Act of the Parliament and the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or eb sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or being sued if this Constitution had not been enacted. Thus the nature and extent of the liability of the government would be same as it existed before the constitution i.e., Section 176 of Government of India Act 1935 and for which the Secretary of State in council where liable to be sued for tortious acts of their servants committed in the course of their employment. Thus the law prevailing before the government of India Act 1958 is material for present discussion. It may be noticed that as early as in 1868 in P&O Steam Navigation Company v/s Secretary of State of India²¹ and later on in Kasturi Lal v/s State of Uttar Pradesh²². In India, there are many decision that has been given, based on this principle by the highest court. But in Nagendra Rao and Company v/s State of Andhra Pradesh²³ the Supreme Court felt the need for a specific legislation regarding the liability of government in tort.

4.  It is in medical negligence, it is well known that doctor owes a duty of care to his patients. This duty can either be a contractual duty or duty arises out of law of tort. The law requires fair and reasonable standard of care for treatment of a patient. A medical professional as a doctor who is consulted by a patient, owes him certain duties, namely a duty of care in his administration of that treatment, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment is to be given etc., a breach of any of these duties will support action for negligence by the patient and a doctor shall be liable for tortious liability and liable to pay compensation under the Consumer Protection Act 1986. The liability of a doctor arises not when the patient has suffered any injury but when the injury has resulted due to the conduct of the doctor which has fallen below, that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those, that are consequence of a breach of his duty and this breach of duty treated as strict liability.

Recently in the case of Pandeeswari V. State of Tamil Nadu²⁴, the Supreme Court has observed that negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in the Law of Torts, Ratanlal and Dhirajlal (edited by justice G.P.Singh), referred to here in above, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”. In the case of medical negligence, Supreme Court in Jacob Mathew V. State of Punjab and another²⁵ dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case.

5.  It is in Fundamental Rights of the Indian Constitution, article 32 declares that right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed, while article 226 provides that notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, inappropriate cases, any government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and writ of certiorari or any of them for the enforcement of any of the rights conferred by part third and for any other purpose. In Ganeshan v/s State of Tamil Nadu and others²⁶, the parents of the deceased boy, filed a petition under article 226 before the High Court claiming compensation on the ground that their only son was killed in a petrol bomb blast caused by some political party. The High Court allowed the claim holding that the state was bound to protect the life and liberty of its citizens. In other case State of Andhra Pradesh v/s Challa Ram Krishna Reddy²⁷, the Supreme Court rejected the state’s plea of sovereign immunity holding that the doctrine has no application where violation of fundamental rights under article 21 is involved. Same is in the Neelabati Behra v/s State of Odisha²⁸, the death of the petitioner’s husband in police custody due to police torture were a serious matter involving violation of article 21 of the constitution, hence the state was directed to pay a compensation to the petitioner’s wife of the deceased. In another case, Rudal Shah v/s State of Bihar²⁹,the plaintiff was awarded compensation for his wrongful detention in jail despite his acquittal by the court. The Court for the first time held that state or its authorities who violate any person’s right to life and liberty as envisaged by article 21 of the constitution, in course of discharge of official duties cannot claim immunity of sovereign function in their defence.

Two Divergent views were expressed by the courts after the decision in the Peninsular Case³⁰. The most important judgment in that of the Madras High Court in Secretary of State v/s Hari Bhanji’s Case³¹. The facts of that case were that during the course of transit of salt from Bombay to Madras Ports, the rate of duty payable on salt was enhanced and the merchant was called upon to pay the difference at the port of destination. The amount was paid under protest and the suit was instituted to recover the amount. The principle question which arose was the jurisdiction of the court to entertain the suit. In an earlier judgment given by Calcutta High Court in the case of Nobin Chandra Dey v/s Secretary of State³², had taken the view that in respect of acts done in the exercise of its sovereign functions by the East India Company. This position was examined by the learned judges of the Madras High Court and two questions governing the maintainability of suits by a subject against the sovereign were considered. The first related to the personal status of the defendant i.e., whether the defendant was a sovereign, who could not be sued in his own courts. The second related to the character of the act in respect of which the relief was sought. The first question did not present much difficulty as the immunity enjoyed by the Crown in England did not extend to the East India Company, all the Charter Acts having recognized the right and liability of the company to sue and to be sued. The second question regarding the nature of the act complained of was more difficult. It was held that the immunity of the East India Company extended only to what are known as Acts of State strictly so-called and the distinction based on sovereign and non-sovereign function of the East India Company was not well-funded. The cases before the act of 1858 and the later cases were considered by the High Court³³.

SOVEREIGN AND NON-SOVEREIGN FUNCTIONS

Distinction between sovereign and non-sovereign functions was considered in the case of N. Nagendra Rao v/s State of Andhra Pradesh³⁴, the court observes that, In the modern sense, the distinction between sovereign and non-sovereign power does not exist. It all depends on the nature of the power and manner of its exercise. Legislative supremacy under the constitution arises out of constitution provisions. The Legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A Law made by a legislature may be bad or may ultra-virus, but since it is an exercise of legislative power a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law. Nor can the government in exercise of its executive action be sued for its decision on political or policy matters. It is in public interest that for acts perform by the state, either in its legislative or executive capacity, it should not be answerable in tort. That would be illogical and impracticable. It would be in conflict with even modern notions of sovereignity.

So if the legislative or executive function is sovereign in nature, whether the state is answerable for such actions in courts of law. For instance, acts such as defence of the country, raising the armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under Civil Procedure Court would lie in respect of it. The State is immune from being sued, as a jurisdiction of the courts in such matters in impliedly barred. In the case of Nilabati Behera v/s State of Odisha³⁵, the Supreme Court stated that it is always open to the High Courts and Supreme Court, to award compensation in the exercise of its constitutional power. It was clarified that such an award did not finally specially or put an into, the claim for damages and that such an award is only a provisional award, which shall be taken into account by the Civil Court, while awarding the damages according to law. In this case, however, the distinction between sovereign and non-sovereign functions and liability of the state for tortious acts of its servants was not gone into.

So the development of the constitutional law of tort through expending dimensions of article 21 of the constitution relating to protection of life and personal liberty and evolution of public interests litigation, writs have substantially contributed to the development of compensatory jurisprudence in the Indian Legal System. The Judiciary no longer permits the state and its executive authorities to justify their wrongful acts in the name of state immunity. It would be no exaggeration to say the doctrine of state’s sovereign power has lost its credence in the new millennium and the real sovereignty now vests in the people of India^.36

It is in Strict Liability, 20^th century witnessed extension of the strict principle to a variety of cases involving damage caused due to user and escape of gas, water, fumes, oil, fire, smoke, poisonous plants and vegetation etc. The reason for this tremendous expansion is of course the fact that it is unnecessary to prove negligence in such cases. The principle of strict liability for hazardous and inherently dangerous activities was for the first time in Rylands V. Fletcher³⁷ and therefore, it is also known as Ryland V. Fletcher Rule. The Court of Exchequer chamber has observed “The person who for his own purpose brings on his land and collects and keeps their anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is primafacie answerable for all the damage which is the natural consequences of its escape”.

It is in Absolute Liability, activities indulging in hazardous or inherently dangerous industry which possess a potential threat to health and safety of a person working in the factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it had undertaken³⁸. In MC Mehta V. Union of India³⁹ gas leakage case, the Supreme Court has observed ‘When an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused by anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensable to those who are affected by the accident. Some examples of absolute liability are as follows –

(i) Where any person dies due to electrocution, the electricity board shall be liable to pay compensation under absolute liability and the plea of electricity board that utmost care and caution was exercised on its side cannot be pardoned, because supply of electricity is hazardous operations itself, “no fault” principle would be applied^.40

(ii) In many cases of environmental pollution the Supreme Court has held that applying the doctrine of absolute liability, the ‘polluter pays’, principle should be applicable against the polluting industrial units and the expenditure incurred on restoring a pollution free environment should be recovered from them even by ordering attachment of their properties, if neccesary⁴¹.

(iii) Public Liability Insurance Act, 1991 provides award of compensation to victims of dangerous and hazardous substances carried out by the industrial enterprise, despite their being no fault or negligence on the part of industry or enterprise⁴².

CONCLUSION

The establishment of English courts in India, English laws were introduced with necessary modifications to suit Indian conditions applying the principle of equity, justice and good conscience and law of tort was no exception to this process of change. Earlier the law of tort is not static like other laws it is also an evolving law, with the passage of time, it has also changed a lot and its ambit and dimension has become expanded. Consequently, new wrongful acts are included in torts and thus its dimensions are becoming very wild day by day. Science and technology development gave birth to human prosperity at the same time hazardous industrial operations had become a great concern to human society. Consequently, it has been an unwanted increase in the cases of environmental pollution, environmental degradation as well as human health and human rights violation. The law of tort has been instrumental in administering all these problems. Public Utilities are taken over by the state. The doctrine of laissez faire-which leaves everyone to look after himself to his best advantage his yielded place to the ideal of a welfare state, which implies that the state takes care of those who are unable to help themselves.

India is a welfare state and it is necessary to establish a jurisdiction between the right of the individual and the responsibilities of the state. While the responsibilities of the state have increased, the increase in its activities has led to a greater impact on the citizen. The citizen of the Independent Nation who are governed by its own people and constitution and not by the crown are still faced well-night fifty years of independence when they approach the court of law for redress against negligence of officers of the state in private law, with the question whether the East India Company would have been liable. Necessity to enact a law in keeping with the dignity of a country and to remove the uncertainty and dispel the misgivings cannot be doubted. Thus, we can say that while the scope of law of tort was very limited in the 13^th century it expanded in the course of time. The development of law of torts has also been a region for the protection of Intellectual Property Rights. Therefore, like other laws the development of law of torts is also going on continuously and will continue in future also. The Supreme Court has observed in various cases, that the principle of sovereign immunity does not apply, when the duty of government or its servants has created under any statutory provisions.

Friedman observed that, It is now increasingly necessary to abandon the lingering fiction of a legally indivisible state and of a feudal conception of the Crown and to substitute for the principle of legal liability where the state, either directly or throw incorporated public authorities engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental functions, but the nature and form of the activity in question⁴³. Therefore, it is advisable to not adopt the legislation in this respect, it is necessary that the law as soon as possible, should be made certain and definite instated of living it to courts to develop the law according to the view of judges. The citizen must be in a position to know the law definitely.

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Footnotes

1. M.N. Shukla, ‘The law of torts’, ed.2018, Central Law Agency (at p.1).

2. Clark & Lindsell on Torts, 11^th edition at P.1.

3. (1866) L.R.1 H.L .93.

4. Salmond, law of torts (20^th ed. 1992) at P.4, 5

5. See also Gloucester Grammar School Case 1410, YB 11 Hen .Iv Foli 47 P1 21, 23, Per H.J

6. See also Ashby V. Whyte (1703)2 Ld. Raiyn 938(955)

7. Winfield: Law of Torts (17^th Ed. 2008) pg.5

8. Dr. N.V. Paranjape, Law of Torts (4^th ed.2020) at p.9

9. Z Morlev’s Digest, 307 (329-330).

10. (1868-1869) 5 Bom , H.C.R. App 1 P.1.

11. ibid at P.14.

12. See also Vidyadevi V.M.P. Road transport cooperation, AIR 1975 MP 89.

13. Manu Smriti, Chapter VIII- 241.

14. Ibid

15. Introduction to intellectual property law (1986) p.3, by Jermy Phillips.

16. Simonds, natural rights of property in Intellectual production 1Yale L.J.

17. Article 27 (2) Universal Declaration of Human Rights, 1948.

18. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

19. R. Raj Gopal V. state of Tamil Nadu, AIR 1995 SC 264.

20. Mr. XYZ V. I Hospital, AIR 1999 SC 495.

21. (1868- 69) 5 Bom. HCR App .1.

22. AIR 1965, SC 1039.

23. AIR 1994, SC 2663.

24. AIR 2025, Madras 86.

25. AIR 2005 SC 3180.

26. 2012, 2 CTC 848

27. AIR 2000, SC 2083

28. AIR 1993, SC 1960

29. AIR 1983, SC 1086

30. 64 I.A.55, on appeal from 57 Mad. 85.

31. (1882) ILR 5 Mad. 273.

32. (1873) ILR 1 Cal.1.

33. The decision are summarized in Ilbert, Government of India at P.196 & 202.

34. AIR 1994 SC, 2663.

35. (1993) 2 SCC 746.

36. Dr. N.V. Paranjpe, law of torts and Consumer Protection Law 4^th ed. 2019, Central Law Agency.

37. (1868) LR 3(HL) 330

38. Association of victims of Uphar Tragedy V. Union of India, AIR 2003, Delhi (DB)

39. AIR 1987 SC 1086

40. S.P Singh and others V. State of J & K and others AIR 2011 J&K 50, Tamil Nadu Electricity board V. Sumathi, AIR 2000 SC 1603

41. Indian Council for Enviro- Legal Action V. Union of India, AIR 1996 SC 1446, MC Mehta V.Kamal Nath AIR 2000 SC 1997.

42. Union Carbide Cooperation V. Union of India 1991, 4 SC 548.

43. Law and Social change, P. 273.