DEVELOPMENT OF TORTS IN INDIA

INTRODUCTION

Law of Torts UNIT I: Revision Notes for LL.B First Year

Introduction to the Law of Torts
The word tort is of French origin and is equivalent of the
English word wrong. It is derived from the Latin
word tortum, which means twisted or crooked. It implies
conduct that is twisted or crooked. Tort is commonly used to
mean a breach of duty amounting to a civil wrong.
Salmond defines tort as a civil wrong for which the remedy is a
common law action for unliquidated damages and which is not
exclusively the
breach of a contract or the breach of a trust or other merely
equitable
obligation.
A tort arises due to a persons duty to others which is
created by one law or the other. A person who commits a tort is
known as a tortfeaser, or a wrongdoer. Where they are more
than one, they are called joint tortfeaser. Their wrongdoing is
called tortuous act and they are liable to be sued jointly and
severally.
The principle aim of the Law of tort is compensation for victims
or their
dependants. Grants of exemplary damages in certain cases will
show that
deterrence of wrong doers is also another aim of the law of tort.
Evolution of Law of Torts in India
The law of torts in India is mainly the English law of torts which
is based on the principles of the common law. This was made
suitable to the Indian conditions in accordance with the
principles of justice, equity and good conscience. However, the
application of tort laws in India is not a very regular event and
one can even go to the extent of commenting that tort as a law
in India is far from being looked upon as a major branch of law
and litigation. In the Indian legal system, the concept of
punishment occupies a more prominent place than
compensation for wrongs.
It has been argued that the development of law of tort in India
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.
Objectives of Law of Torts
to determine the rights between parties to dispute
to protect certain rights recognized by law
to prevent the continuation or repetition of a harm
to restore the property to its rightful owner
Scope of Tort
Tort & Contract
1. In a contract, the parties fix the duties themselves whereas
in torts, the law fixes the duty.
2. A contract stipulates that only the parties to the contract can
sue and be sued on it (privity of contract) while in tort,
privity is not needed in order to sue or be sued.
3. In the case of contract, the duty is owed to a definite
person(s) while in tort, the duty is owed to the community at
large i.e. duty in- rem.
4. In contract remedy may be in the form of liquidated or
unliquidated damages whereas in tort, remedies are always
unliquidated.
Tort & Crime
1. In tort, the action is brought in the court by the injured
party to obtain compensation whereas in crime, proceedings
are conducted by the state.
2. The aim of litigation in torts is to compensate the injured
party while in crime; the offender is punished by the state in
the interest of the society.
3. A tort is an infringement of the civil rights belonging to
individuals while a crime is a breach of public rights and
duties, which affect the whole community.
4. Parties involved in criminal cases are the Prosecution verses
the Accused person while in Torts, the parties are the
Plaintiff versus the Defendant.
Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior
and respect the rights and interests of one another. A protected
interest gives rise to a legal right, which in turn gives rise to a
corresponding legal duty. An act, which infringes a legal right, is
wrongful act but not every wrongful act is a tort.
To constitute a tort or civil injury therefore:
1. There must be a wrongful act or omission.
2. The wrongful act or omission must give rise to legal damage
or actual damage and;
3. The wrongful act must be of such a nature as to give rise to a
legal remedy in the form of an action for damages.
The wrongful act or omission may however not necessarily
cause actual damage to the plaintiff in order to be actionable.
Certain civil wrongs are actionable even though no damage
may have been suffered by the plaintiff.
01. Wrongful Act
An act or omission that prejudicially affect ones legal right.
Such legally violative wrongful act is called as actus
reus. Thus, liability for a tort arises when the wrongful act
amounts to either an infringement of a legal private right or a
breach.
An act, which at first, appears to be innocent may
become tortuous if it invades the legal right of another person
e.g. the erection in ones own land which obstructs light to a
neighbors house. Liability for a tort arises when the wrongful
act amounts to an infringement of a legal right or a breach.
02. Damage
The sum of money awarded by court to compensate damage is
called damages. Damage means the loss or harm caused or
presumed to be suffered by a person as a result of some
wrongful act of another. Legal damage is not the same as
actual damage.
The real significance of legal damage is illustrated by two
maxims namely:
Injuria sine damno and Damnum sine injuria
Injuria sine damno (Injury without damage)
It means violating of a legal right without causing any harm,
loss or damage to the plaintiff. There are two kinds of torts:
firstly those torts which are actionable per se, i.e. actionable
without the proof of any damage or loss. For instance, trespass
to land, is actionable even though no damage has been caused
as a result of the trespass.
Secondly, the torts which are actionable only on the proof of
some damage caused by an act. For successful actions the
only thing which has to be proved is that the plaintiffs legal
right has been violated, i.e. there is injuria.
Case Law: Refusal to register a voter was held as and injury
per-se even when the favorite candidate won the election
Ashby Vs. White (1703). This rule is based on the old maxim
of law, Ubi jus ibi remedium, which means that where there is a
right, there is a remedy.
Damnum sine injuria (Damage without injury)
It means There may be an injury inflicted without any act of
injustice. There is another term like it that is damnum absque
injuria, which means damage or harm without an injury in the
legal sense. In other words a loss or injury to someone which
does not give that person a right to sue the person causing the
loss.
Case Laws:
In the case of Mayor & Bradford Corporation Vs. Pickles
(1895), Pickles was annoyed by the refusal of Bradford
Corporation to purchase his land for their water undertaking.
Out of spite, he sank a shaft on his land, which had the effect of
discoloring and diminishing the water of the Corporation, which
percolated through his land. The House of Lords held that the
action of Pickles was lawful and no matter how ill his motive
might be he had a right to act on his land in any manner that so
pleases him.
In the case of Mogul Steamship Co. Vs. Me-Gregory (1892).
Certain ship owners combined together. In order to drive a
ship-owner out of trade by offering cheap freight charges to
customers who would deal with them. The plaintiff who was
driven out of business sued the ship-owner, for loss caused to
him by their act. The court held that a trader who is ruined by
legitimate competition of his rivals could not get damages in
tort.
03. Remedy Development of Ubi jus ibi Remedium
The law of torts is said to be a development of the maxim ubi
jus ibi remedium (there is no wrong without a
remedy). Whenever the common law gives a right or prohibits
an injury, it also gives a remedy. It is an elementary maxim of
equity jurisprudence that there is no wrong without a remedy.
The maxim means only that legal wrong and legal remedy are
correlative terms.
A tort is a civil injury, but all civil injuries are not torts. The
wrongful act must come under the category of wrongs for which
the remedy is a civil action for damages. The essential remedy
for a tort is an action for damages, but there are other remedies
also e.g., injunction, restitution, etc.
Case Law:
In the case of Abbot v. Sullivan, the court held that there is a
right to receive a time-barred debt but there is no remedy to
recover it.
Foundations of Tortious Liability
Tortious liability arises from the breach of a duty primarily fixed
by the law: such duty is towards persons generally and its
breach is compensated by an action for unliquidated damages.
Theory 1: By Winfield Law of Tort General Liability: all
injuries done to another person are torts, unless there be some
justification recognized by the law
Theory 2: By Salmonds Pigeon Theory Law of
Torts: there is a definite number of torts (assault, battery,
defamation) outside which liability in tort does not exist
Case Law:
Rougher, J., described in the case of John Munroe (Acrylics)
Ltd. v. London Fire and Civil Defence Authority, It is truism
to say that we live in the age of compensation. There seems to
be a growing belief that every misforture must, in pecuniary
terms at any rate, be laid at someone elses door, and after
every mishap, the cupped palms are outstretched for the solace
of monetary compensation.
General Elements of Torts
Act & Omission
To constitute a tort, there must be a wrongful act. The word
act is used to include both positive and negative acts i.e., acts
and omissions. Wrongful acts which make a person liable in tort
are positive acts and sometimes omissions. They must be
distinguished from natural calamities, and even from mere
thoughts and intentions.
Failure to do something in doing an act is a bad way of
performing the act. For example, if a lawyer gives an opinion
without taking notice of the change in law brought about by a
reported decision of the Supreme Court, he would not be guilty
of an omission but of performing the act of giving his opinion in
a bad way.
Where as an omission is failure to do an act as a whole.
Generally, the law does not impose liability for mere omissions.
An omission incures liability when there is a duty to act. For
example, a person cannot be held responsible for the omission
of not rescuing a stranger child whom he sees drowning even
though he can rescue him without any appreciable exertion or
risk of harm to himself. But the result would be different if a
parent or guardian is failed to attempt to rescue the child. In
that case, it would be an omission as there is a duty to act.
Voluntary Acts & Involuntary Acts
A voluntary act may be distinguished from an involuntary act as
only voluntary acts have liability. Voluntary act can be
understand based on its willed mascular contraction, its
circumstances and its consequences. For example, an act of
murdering a person by shooting at him is one act and not
merely the muscular contraction of pressing the trigger.
An involuntary act does not give rise to any liability. For
example, an involuntary act of trespass is not a tort.
Omissions like positive acts may also be voluntary or
involuntary.
In the case of Olga Tellis v. Bombay Municipal
Corporation, the Supreme Court held that the encroachments
committed by those persons are involuntary acts in the sense
that those acts are compelled by inevitable circumstances and
are not guided by choice.
Mental elements
A voluntary act can be held in strict liability if theres a presence
of required mental element i.e., malice, intention, negligence or
motive in addition to the other necessary ingredients of the torts
are present.
o Malice in Law and in Fact
Malice means spite or ill-will. However, in law malice has two
distinct meanings such as: 1. Intentional doing of a wrongful act
and 2. Improper motive. In the first sense, malice is
synonymous with intention and in the second sense, malice
refers to any motive which the law disapproves.
Malice with an intention of wrongful act is called as Malice in
Law. It is also called as implied malice. In a legal sense,
malice means a wrongful act, done intentionally, without just
cause or excuse. For example, if a person give a perfect
stranger a blow likely to produce death, the person do it out of
malice because, he do it intentionally and without just cause or
excuse.
Malice with an improper motive is called as Malice in fact. It is
also called as express malice. Malice in fact is liable for
malicious prosecution.
Wrongful acts of which malice is an essential element are:
Defamation
Malicious prosecution
Willful and malicious damage to property
o Intention, Negligence and Recklessness
Intention is an internal fact, something which passes in the
mind and direct evidence of which is not available. Theres a
popular saying that it is common knowledge that the thought of
man shall not be tried, for the devil himself knoweth not the
thought of man.
In general terms, negligence is the failure to use ordinary
care through either an act or omission. That is, negligence
occurs when:
somebody does not exercise the amount of care that a
reasonably careful person would use under the
circumstances; or
somebody does something that a reasonably careful person
would not do under the circumstances.
In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a
pregnant woman, was sitting behind the counter of her
husband?s bar when suddenly a horse was driven into the bar.
Fearing her personal safety, she suffered nervous shock and
gave birth to a premature baby. In the circumstances, the court
held that the plaintiff was entitled to recover in negligence.
Recklessness is also called as gross negligence. Gross
negligence means conduct or a failure to act that is so reckless
that it demonstrates a substantial lack of concern for whether
an injury will result. It is sometimes necessary to establish
gross negligence as opposed to ordinary negligence in order
to overcome a legal impediment to a lawsuit. For example, a
government employee who is on the job may be immune from
liability for ordinary negligence, but may remain liable for gross
negligence.
o Motive
Motive is the ulterior object or purpose of doing an act. It differs
from intention in two ways. First, intention relates to the
immediate objective of an act, whereas, motive refers to the
ulterior objective. Secondly, motive refers to some personal
benefit of satisfaction which the actor desires whereas intention
need not be so.
For example, When A poisons B, the immediate objective is to
kill B and so this is As intention. The ulterior objective of A may
be to secure Bs estate by inheritance or under a will executed
by him and this objective will be As motive. Motive is generally
irrelevant in tort.
In the case of Mayor & Co. of Bradford v. Pickles, A sank a
well on his land and thereby cut off underground water-supply
from his neighbour B, and Bs well was dried up. It was not
unlawful for a land-owner to intercept on his own land
underground percolating water and prevent it from reaching the
land of his neighbour. The act did not become unlawful even
though As motive in so doing was to coerce B to buy his land
at his own price. A, therefore, was not liable to B, however
improper and malicious his motive might be.
o Malfeasance, Misfeasance, Non-feasance
The term Malfeasance applies to the commission of an
unlawful act. It is generally applicable to those unlawful acts,
such as trespass, which are actionable per se and do not
require proof of intention or motive.
The term Misfeasance is applicable to improper performance
of some lawful act for example when there is negligence.
The term non-feasance applies to the omission to perform
some act when there is an obligation to perform it. Non-
feasance of gratuious undertaking does not impose liability, but
misfeasance does.
M.C. Mehta v. Union of India
o Fault
If mental elements such as intention, negligence, malice or
motive together with an act or omission which is violative of a
right recognized by law plays an important role in creating
liability. Such tortious liability has an element of fault to support
it. But there is a sphere of tortious liability which is known as
absolute or strict liability, where the element of fault is
conspicuously absent.
In the case of M.C. Mehta v. Union of India, the rule of strict
liability is laid down that an enterprise engaged in a hazardous
or inherently dangerous activity is strictly and absolutely liable
for the harm resulting from the operation of such activity.
Tort law in India
From Wikipedia, the free encyclopedia

Tort law in India

National flag of Republic of India

Legal system

Common law

Sources of tort law

Common law

Statutes

Categories of tort law

Assault

Battery

False imprisonment

Negligence
 Professional negligence

Contributory negligence

Defamation

Economic torts

Conspiracy

Fraud

Intentional interference

Restraint of trade

Land torts

Trespass

Nuisance

Rule in Rylands v Fletcher

Constitutional torts
v
t
e
Tort law in India is a relatively new common law development
supplemented by codifying statutes including statutes
governingdamages. While India generally follows the UK
approach, there are certain differences which may
indicate judicial activism, hence creating controversy. Tort is
breach of some duty independent of contract which has caused
damage to the plaintiff giving rise to civilcause of action and for
 which remedy is available. If there is no remedy it cannot be
called a tort because the essence of tort is to give remedy to
the person who has suffered injury.
Contents
[hide]

1Sources of law
o 1.1Statutes
o 1.2Common law
o 1.3Relevant local customs and practices
2Categories of torts
o 2.1Offences to the person
2.1.1Assault
2.1.2Battery
2.1.3False imprisonment
o 2.2Negligence
2.2.1Professional negligence
2.2.2Contributory negligence
o 2.3Defamation
o 2.4Economic torts
o 2.5Land torts
2.5.1Trespass to land
2.5.2Nuisance
2.5.3Rule in Rylands v Fletcher
o 2.6Constitutional torts
3Damages
o 3.1Calculation of damages
o 3.2Approach towards pain and suffering
o 3.3Punitive damages
4Tortious litigation
o 4.1Difficulties in the legal system
o 4.2Reforms
5Controversies
o 5.1Absolute liability
o 5.2Judicial activism
 6Notes
7See also
8Further reading
o 8.1Cases
o 8.2Articles
o 8.3Books
9External links
Sources of law[edit]
Tort law in India, like her common law counterparts, stems from
both statute and common law.
Statutes[edit]
Similar to other common law countries,[1] aspects of tort law
have been codified.[2] Furthermore, the Indian Penal
Code criminalises certain areas of tort law.[3]
Common law[edit]
As tort law is a relatively young area of law in India, apart from
referring to local judicial precedents, courts have readily
referred to case law from other common law jurisdictions, such
as UK,[4] Australia,[5] and Canada.[6]
Relevant local customs and practices[edit]
However, attention is given to local socio-cultural practices and
conditions in applying foreign legal principles. The legislature
have also created statutes to provide for certain social
conditions; for example, due to the nature of Indian families, a
statute was passed to simplify determination of damages in the
event of family members.[clarification needed][7]
Categories of torts[edit]
Offences to the person[edit]
Assault[edit]
Indian courts have held that to constitute assault it is not
necessary that there should be some actual hurt caused.
A threat constitutes assault.[8]
The ingredients are set out below:[9]

Making of any gesture or preparation by a person in the

presence of another.
Intention or knowledge of likelihood that such gesture or
preparation will cause the person present to apprehend that
the person making it is about to use criminal force on him.
Battery[edit]
The criteria for battery is equivalent to that of criminal
force[10] defined in Section 350 of the Indian Penal Code.[11]
False imprisonment[edit]
False imprisonment "is the complete deprivation of his liberty
for any time, however short, without lawful cause ... There need
not be any actual imprisonment in the ordinary sense."[12]
The ingredients of this tort are listed below:[13]

Restraint must be complete.

There must be no reasonable condition imposed by
occupiers of premises.
There must be no reasonable and honest belief which would
justify the confinement.
Negligence[edit]
In regard to negligence, Indian jurisprudence have approved
the approach stated in Ratanlal & Dhirajlal: The Law of
Torts,[14][15] laying down three elements:

A legal duty to exercise "ordinary care and skill".

The breach of [the] duty caused by the 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.
Resulting in injury to the plaintiff's person or property.

Professional negligence[edit]
The Indian approach to professional negligence requires that
any skilled task requires a skilled professional.[16] Such a
professional would be expected to be exercising his skill with
reasonable competence.[17]
Professionals may be held liable for negligence on one of two
findings:

He was not possessed of the requisite skill which he

professed to have possessed.
He did not exercise, with reasonable competence in the
given case, the skill which he did possess.
The standard to be applied for judging negligence would be that
of an ordinary competent person exercising ordinary skill in that
profession. It is not necessary for every professional to possess
the highest level of expertise in that branch which he
practices.[17] Professional opinion is generally accepted, but
courts may rule otherwise if they feel that the opinion is "not
reasonable or responsible".[18]
Contributory negligence[edit]
Indian Courts recognise the concept of contributory negligence.
Contributory negligence means the failure by a person to use
reasonable care for the safety of either of himself or his
property, so that he becomes blameworthy in part as an "author
of his own wrong".[19]
In the absence of reasonable care on the part of the claimant,
courts are likely to reduce the liability of the injurer. "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."[20]
Defamation[edit]
The tort of defamation in India has largely followed the
approach taken by the UK. Indian courts have endorsed the
defences of absolute[21] and qualified privilege,[22] fair
comment[23] and justification.[24] In UK, if the defendant is only
successful in proving the truth of some of the several charges
against him, the defence of justification might still be available if
the charges not proved do not materially injure the
reputation.[25] While there is no such provision in India, the law
is possibly the same.[26] Recently, incidents of defamation in
relation to public figures are highlighted.[27]
However, in India, the weight of the authorities is for discarding
between libel and slander and making both of them
actionable per se.[26] In UK, only libel and certain types of
slander is actionable per se.[28] Criminal libel in UK was
abolished in 2010,[29] while both slander and libel remain
criminal offences in India,[30] making people liable not just to the
extent of damages but also undergoing imprisonment.[31] An
injunction may also be granted to stop further publication of
defamatory material.[32]
Economic torts[edit]
Economic Torts seek to protect a person in relation to his trade,
business or livelihood.[33]
While Indian courts has been reluctant to award damages for
the economic torts of simple and unlawful conspiracy as well as
inducing breach of contract due to the confused state of the
law,[34] the court has allowed damages for torts affecting
economic interests under the conspiracy to injure, and in doing
so, referred to UK authorities on the matter.[35]
The courts have however been more willing to adopt the law in
UK in areas such as the tort of deceit,[36] unlawful interference
with trade,[37] intimidation,[38] and malicious falsehood.[39]
Land torts[edit]
Land torts seek to prevent interference with land in the
possession of another.[40] Interference may take the form of
entering land or part of it, or of remaining there after the
withdrawal of permission, or of dispossessing the occupant.[33]
Trespass to land[edit]
Trespass to land is any direct interference with land in the
possession of another and is actionable per se.[33] Examples of
trespass are unauthorised entry to land, placing things on land
and inducing animals to enter.[41] Also, continuing trespass,
which is actionable from day to day,[42] occurs when there is
continuation of presence after permission is withdrawn.[43] The
position taken with regards to the elements of trespass is
similar in the UK and India.[44]
Nuisance[edit]
Nuisance is a form of lesser interference with land.[33] It may be
private or public, and private nuisance has come to cover the
conduct of the defendants which affects the claimant's interest
in the land.[45] This could be done by:

Affecting materially his land.

Affecting his use or enjoyment of it.
Interfering with servitudes and similar rights over the land.[33]
While private nuisance is always actionable, public nuisance is
not. A claimant of public nuisance has to establish special loss
over and above the inconvenience suffered by the public in
general,[46] as public nuisance is a crime and it would be
unreasonable for everyone inconvenienced by it to be allowed
to claim.[47] This distinction was followed in India,[48] along with
the UK principles of nuisance.[49]
Rule in Rylands v Fletcher[edit]
Anyone who in the course of "non-natural" use of his land
"accumulates" thereon for his own purposes anything likely to
do mischief if it escapes is answerable for all direct damage
thereby caused.[50] It imposes strict liability on certain areas of
nuisance law.[33]
While in the UK, this rule is strictly "a remedy for damage to
land or interests in land" and "damages for personal injuries are
not recoverable under the rule",[51] in India, the courts have
developed this rule into a separate area of absolute liability
rule, where an enterprise is absolutely liable, without
exceptions, to compensate everyone affected by any accident
resulting from the operation of hazardous activity.[52] This differs
greatly from the UK approach as it includes all kinds of resulting
liability other than damage to land.[52]
Constitutional torts[edit]
Another area of tort that developed in India which differs from
the UK is the availability of constitutional torts. Creating
constitutional torts is a public law remedy for violations of rights,
generally by agents of the state, and is implicitly premised on
the strict liability principle.[53] The tort was further entrenched
when the court allowed compensation to be awarded as "a
remedy available in public law; based on strict liability for the
contravention of fundamental rights to which the principle of
sovereign immunity does not apply, even though it may be
available as a defence in private law in an action based on
tort".[54] This approach is vastly different from the approach
taken in UK as compensation for damages is not an available
public law remedy.[55]
Damages[edit]
Calculation of damages[edit]

Heads of claims under personal injury

Damages in the law of torts in India are premised on the
concept of restitutio ad integrum.[56] India adopts a
compensatory method and advocates "full and fair
compensation" in all cases.[57]
In determining the quantum of damages, the Indian court will
look to similar cases that may enable comparison.[58]
Indias formulation of damages for tort cases is premised on the
multiplier method, awarding compensation based on the degree
of compromise to the earning ability of the victim.[59] Under the
multiplier method, the fair and just amount represents
the number of years' purchase on which the loss of
dependency is capitalised. Then allowance to scale down the
multiplier would have to be made taking into account the
uncertainties of the future. The allowance for immediate lump
sum payment the period over which the dependency is to last
being shorter and the capital feed also to be spent away over
the period of dependency is to last.[60]
The multiplier principle is encapsulated in a statutory form for
tortious cases involving personal injuries caused by motor
vehicles, under the Motor Vehicle Act.[61] However, in so
calculating, the court will take into account inflation in
calculating damages.[62]
For instances of pecuniary damages with regards to personal
injury, the following heads[clarification needed] will be taken into
account:[63]

Loss of earning.
Medical, hospital and nursing expenses.
The loss of matrimonial prospects.
In instances of non-pecuniary loss, the following will be taken
into consideration:[64]

Loss of expectation of life.

Loss of amenities or capacity for enjoying life.
Loss or impairment of physiological function.
Pain and suffering.
Aggravated damages may be awarded to compensate victims
for their wounded feelings in tortious cases in certain
cases.[65] These damages are determined by examining if the
defendant's conduct aggravated the plaintiff's damage by
injuring "feelings of dignity, safety and pride".[66]
Approach towards pain and suffering[edit]
In analysing pain and suffering, several factors such as severity
of injury, medical treatment required, psychological
stress[67] and long-term physical and emotional scars, would be
taken into account.[68]
In cases of victims who were unconscious, one must award not
only for the "loss of amenities and loss of expectation of life, but
also for pain and suffering".[69] Such damages are awarded not
as a matter of "solace".[70] This view comes close to that
expressed by Lord Scarman in Lim Poh Choo v Camden and
Islington Area Health Authority,[71] difference being that an
award must be "made even for pain and suffering in case of
unconscious plaintiffs".[70] The reason for so doing is that it
"looks strange that wrongdoer whose negligence makes the
victim unconscious is placed in a more advantageous position
than one who inflicts a lesser injury which does not render the
victim unconscious".[72]
There are three guiding principles in measuring the quantum of
compensation for pain and suffering:[73]

Amount of compensation awarded must be reasonable and

must be assessed with moderation.
Regard must be had to awards made in comparable cases.
The sum awarded must to a considerable extent be
conventional.
Punitive damages[edit]
Being influenced by Rookes v Barnard,[74] the India Court ruled
that punitive damages can be awarded in only three
categories:[75]
 Cases where the plaintiff is injured by the oppressive,
arbitrary or unconstitutional action by a servant of the
government.
Cases in which the defendants conduct has been calculated
by him to make a profit for himself which may well exceed
the compensation payable to the plaintiff.
Where provided by statute.
However, this stand has since shifted with an expanding tort
jurisdiction. The Supreme Court accepted a committee's
suggestion to evolve a "principle of liability punitive in nature
on account of vandalism and rioting".[76] The reasoning given
was that it "would deter people from similar behaviour in the
future".[76]
In an environmental tort case, the defendant was made to pay
exemplary damages "so that it may act as deterrent for others
not to cause pollution in any manner".[77]
Tortious litigation[edit]
Despite being often cited as a litigious country,[78] the rate of
litigation is low, due to problems such as long delays, heavy
expenses and meagre damage awards.[79] There has
apparently been an increase in litigation over the past years,
especially with cases involving the government.[80] This has
been said to be due to Indias socio-economic growth and the
resultant sensitisation regarding legal rights.[80]
Difficulties in the legal system[edit]
The delay in delivery of justice is a major problem plaguing
India.[81] 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),[82] as well as poor administrative
governance.[83]
Outmoded procedural laws allow for delaying tactics, such as
interlocutory appeals and stay orders.[83] The government has
also been accused of employing delay tactics whenever it is a
litigant, appealing even when the chance of success is
remote.[84] As a result, the system appears to resemble a "sunk
cost auction", where litigants invest ever-increasing amounts to
stave off higher losses.[79]
Reforms[edit]
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".[85]
Controversies[edit]

Article 21 is at contention here with regards to constitutional

torts.
Absolute liability[edit]
One of the controversies in Indian tort law concerns the rule
on absolute liability. The extremely strict approach, where
even acts of Godare not recognised as a defence is severely
criticised especially since it disregarded the "generally accepted
parameter of minimum competence and reasonable
care".[86] 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.[86]
Judicial activism[edit]
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.[87] Controversy further arose when judges began to
read such obligations of the state into Article 21 of the Indian
Constitution[88] to impose vicarious liability on the
state.[89] However, such judicial activism in India has been used
for "achieving social and distributive justice."[90]