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VIVEKANANDA SCHOOL OF
LAW AND LEGAL STUDIES

ACADEMIC SESSION: 2018-22

TORTS : PSDA
TOPIC: ‘Need for tort law an analysis’

Submitted To: Submitted By:

Ms Kanchan Lavania Amulya Kaushik

Professor (Law of torts ) Roll No: 111

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Section:2c

ACKNOWLEDGEMENT

It feels great pleasure in submitting this research project to, Ms Kanchan Lavania , Professor
(Law of torts), without whose guidance this project would not have been completed
successfully. Secondly, I would like to sincerely thank my seniors, whose suggestions and
guidance assisted me throughout the entire tenure of making the project.

Last but not the least, I would like to express my heartfelt gratitude towards my
parents and friends who guided me and helped me at every possible step.

B. A. LLB. (Hons.)

2 semester
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INTRODUCTION

Definition of Tort

The term tort is the French equivalent of the English word wrong 6. The word tort is also
derived from the Latin word” tortum”7, which means twisted or crooked or wrong, in
contrast to the word rectum, which means straight (rectitude uses that Latin root). Thus
conduct that is twisted or crooked and not straight is a tort. The term was introduced into the
English law by the Norman jurists.

Earlier the word tort was used in everyday speech; today it is left to the legal system. A
judge will instruct a jury that a tort is usually defined as a wrong for which the law will
provide a remedy, most often in the form of money damages. The law does not remedy all
“wrongs.” The preceding definition of tort does not reveal the underlying principles that
divide wrongs in the legal sphere from those in the moral sphere. Hurting someone’s
feelings may be more devastating than saying something untrue about him behind his back;
yet the law will not provide a remedy for saying something cruel to someone directly, while
it may provide a remedy for "defaming" someone, orally or in writing, to others i.e. law
seeks to provide justice for a legal injury8 which may be defined specifically by the legal
system of an country.

Although the word is no longer in general use, tort suits are the stuff of everyday headlines.
More and more people injured by exposure to a variety of risks now seek redress i.e. a sort
of remedy through the
6The word is derived from Old French and Anglo-French "tort" (injury), which is derived from
Medieval Latin tortum, See Online Etymology Dictionary

7. The word is derived from Old French and Anglo-French "tort" (injury), which is derived from
Medieval Latin tortum, See Online Etymology Dictionary

8 The Cambridge Business English Dictionary (Cambridge University Press)

courts. The everyday awarding of multimillion suits against doctors, factory owner etc are
all examples of compensation granted by the law to the plaintiff (the one who is wronged by
a tort).

The law of torts developed almost entirely in the common-law courts 9; that is, statutes
passed by legislatures were not the source of law that plaintiffs usually relied on. Usually,
plaintiffs would rely on the common law (judicial decisions). Through thousands of cases,
the courts have fashioned a series of rules that govern the conduct of individuals in their no
contractual dealings with each other. Through contracts, individuals can craft their own
rights and responsibilities toward each other. In the absence of contracts, tort law holds
individuals legally accountable for the consequences of their actions. Those who suffer
losses at the hands of others can be compensated.10

Commonly tort is confused with crime many acts (like homicide) are both criminal and
tortuous. But torts and crimes are different, and the difference is worth noting. A crime is an
act against the people as a whole. Society punishes the murderer; it does not usually
compensate the family of the victim. Tort law, on the other hand, views the death as a private
wrong for which damages are owed. In a civil case, the tort victim or his family, not the
state, brings the action. The judgment against a defendant in a civil tort suit is usually
expressed in monetary terms, not in terms of prison times or fines, and is the legal system’s
way of trying to make up for the victim’s loss.

Kinds of Torts

There are three kinds of torts: intentional torts, negligent torts, and strict liability torts.
Intentional torts arise from intentional acts, whereas unintentional torts often result from
carelessness
 9 Steve Russell A brief history of Indians, Torts and English common law

10 M. Bussani and A. Sebok eds. Edward Elgar (2013) Comparative Tort Law Research
Handbooks in Comparative Law, Tort Damages for Non-economic Losses (in cases of
physical injury to the person)

surgical team fails to remove a clamp from a patient’s abdomen when the operation is
finished). Both intentional torts and negligent torts imply some fault on the part of the
defendant. In strict liability torts, by contrast, there may be no fault at all, but tort law will
sometimes require a defendant to make up for the victim’s losses even where the defendant
was not careless and did not intend to do harm. The standard action under tort is negligence.
The tort of negligence gives a cause of action This leads to damages, or to relief, in each case
planned to protect legal rights, including those of Private safety, property, and, in some cases,
intangible economic interests. Negligent actions Include claims coming mainly from car
accidents and private injury accidents of different kinds, Including clinical negligence, workers
negligence, etc. Product liability (warranties and the like) cases can also be considered as
negligence actions, but there is frequently a noteworthy overlay of some additional lawful
content e.g. Donoghue v. Stevenson's.

Among intentional torts there may be certain torts coming from the occupation or use of
land. One of which is the tort of nuisance, which takes into account strict liability for a
neighbor who hinders another’s enjoyment of his own property. Trespass permits owners to
sue for entrances by an individual (or his structure, for example - an overhanging building)
on their land. There is also a tort of false imprisonment, and another tort of defamation,
where someone creates an unsupportable reason for Arrest or their speech is not represented
to be factual which somewhat damages the reputation of another. Workers' compensation
laws were a legislative answer to the common law torts order placing Limits on to the extent
to which workers could sue their employers in relation to injuries sustained during
employment.

Codification of the tort law in India has been a much debated topic because in a country like
India Where there are very good codified laws like Code of criminal procedure and civil
procedure code tort law being undefined does question the Legislative’s intent on bringing
under control civil wrong, but the legislative and the executive cannot only be blamed for
tort as it is the society’s tolerance level with civil wrongs that defines how law of tort is
implemented and the majority people in India who don’t pay much heed to other
individual’s rights it is difficult to bring about a sea of change even with codifying tort law .
But nonetheless it is an accepted fact that tort law is still in its nascent stage in India and still
underdeveloped because issues like fixing a particular perimeter for awarding compensation,
differentiating types of negligence are not addressed, even today in India cases are decided
in India by judges on superficial parameters like the paying power of the respondent.
Although institutions like the national consumer forum etc. have been formed to address
grievances of the public but still they have not been able to substitute for the impact that a
codified tort law would have had in safeguarding individual interest.

Evolution and development of tort law

A tort is a civil wrong for which the remedy is an action for unliquidated damages and
which is not exclusively the breach of a contract, or the breach of a trust, or the breach of
other merely equitable obligation´- Salmond 11

The term tort was introduced into the terminology of English Law by the French speaking
lawyers and Judges of the Courts of Normandy and Angevin Kings of England 12. As a
technical term of English law, tort has acquired a special meaning as a species of civil injury
or wrong. Till about the middle of the seventeenth Century tort was an obscure term, at a
time when procedure was considered more important than the right of an individual. This
emphasis on procedural aspect for determining the success for a case continued for some
500 years, till 1852, when the Common Law Procedure Act was passed and primacy of
substance over the procedure gradually gained firmer ground. Today the maxim as it stands
is ubi jus ubi remedium, i.e. where there is right there is remedy. Tort is the French
equivalent of the English word wrong and of the Roman law term delict. It is expected out
of everyone to behave in a straightforward manner and when one deviates from this straight
path into crooked ways he is said to have committed a tort. Though many prominent writers
have tried to define Tort, it is difficult to do so for varied reasons. The key reason among
 this being, that the law of Torts is based on decided cases i.e.

11 John William Salmond, Jurisprudence, Or, the Theory of the Law. (1907)

12 John Gillingham, The Angevin

doctrine of precedence. Judges while deciding a case, feel their primary duty is to adjudge
the case on hand rather than to lay down wider rules and hence they seldom lay down any
definition of a legal term. Furthermore the law of tort is still growing. If a thing is growing
no satisfactory definition can be given. Tort as we know today has evolved over the
centuries and has grown tremendously in countries such as the England, United States of
America, and other progressive countries and to a certain extent in India.

Indian scenario
In India the term tort has been in existence since pre-independence era. The Sanskrit word
Jimha,which means crooked was used in ancient Hindu law13 text in the sense of tortuous of
fraudulentconduct. Most of Indian tort law was developed after the British colonization. The law
of torts asadministered in India in modern times is the English law as found suitable to Indian
conditions and asmodified by Acts of the Indian Legislature .The law of torts or civilwrongs in
India is thus almostwholly the English law, which is administered as rules of justice, equity and
good conscience. 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 forwrongs. The law of torts in India presently, is
mainly the English law of torts which itself is based on the principles of the common law of
England
13 Gerald James Larson, Religion and Personal law in Secular India, A call to Judgment, 272
(Indiana
University Press, Bloomington 2001)
Torts law in India
During British rule, courts in India were enjoined by Acts of Parliament in the UK and by Indian
enactments to act according to justice, equity and good conscience if there was no specific rule
ofenacted law applicable to the dispute in a suit14. In regard to suits for damages for torts, courts
followedthe English common law insofar as it was consonant with justice, equity and good
conscience. Theydeparted from it when any of its rules appeared unreasonable and unsuitable to
Indian conditions. An English statute dealing with tort law is not by its own force applicable to
India but may be followed hereunless it is not accepted for the reason just mentioned. 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. This fact is quite appreciated because there is a difference in the societies and
systems of Britain and India tort law is not codified in India.This means whenever an exigency
arises, a precedent shall be set up to take care of the peculiarsituation. During British rule, courts
in India were enjoined by Acts of Parliament in the UK and by Indian enactments to act
according to justice, equity and good conscience if there was no specific rule ofenacted law
applicable to the dispute in a suit. In regard to suits for damages for torts, courts followedthe
English common law in so far as it was consonant with justice, equity and good conscience.
Theydeparted from it when any of its rules appeared unreasonable and unsuitable to Indian
conditions. AnEnglish statute dealing with tort law is not by its own force applicable to India but
may be followed hereunless it is not accepted for the reason just mentioned.

There has been a pressing need in India to reform different sectors of law and torts
whichcontinues to be ignored for a variety of reasons in India like –

I. High litigation cost (thus the common man is discouraged to go to court)

II. The amount of time taken by the judiciary in awarding compensation is not worth
waitingfor.
III. Men of provisions of tort law are covered in CPC and CRPC so the ones uncovered are
notproperly ruled on by the judges in courts.
Tort is the part of law where response to a personal or civil wrong or injury where the courts
provide intort law it believed that by giving the remedy the court is restoring the victim to his or
her former statebefore the tort took place Given that in India it was believed that even if the
constitution doesn’tparticularly codifies tort law the other code like CPC and CRPC would be
able to cover the civilwrongs and provide justice has failed now the state of civil cases related to
tort in Indian courts are inshambles.
Tort law is considered to be the development of an old maxim ubi jus ibi remedium15 (Every right
needsa Remedy).Understand of this underdevelopment regarding a deep-seated question in
almost all systemsof law is that how to make a wrongdoer accountable in India where for e.g. in
a tort like negligencenobody ever finds out who committed the tort and only some lucky
plaintiffs can find a solventdefendant, P. S. Atiyah has called this situation as a "damages
lottery”
Certainly, some of the features of the law of torts are which were developed in England are
absent inIndia. The Indian courts therefore, apply those principles to match the situations in
India. This meansthere is an altercation from the British law to suit the Indian conditions. This
fact is quite appreciatedbecause there is a difference in the societies and systems of Britain and
India tort law is not codified in India. This means whenever an exigency arises, a precedent shall
be set up to take Care of the peculiarsituation. This definitely is a good solution to cope up with
civil matters in the largest democracy on theplanet. It has also been noted in the Union Carbide
Case, that Section 9 of the Code of Civil Procedure38,which enables a Civil Court to try all suits
of a civil Nature, impliedly confers jurisdiction to apply thelaw of torts as principles of justice,
equity and Good conscience.This definitely is, providing a forum to try civil wrongs and making
them a miscellaneous category. Thisprovides the courts with a wide array of jurisdiction.
Nuisance39, Negligence40, etc. are wrongs of adifferent nature. It is definitely agreed that the
simpler torts need Highlighting, but the problem againremains the same. To overcome the same
there should be courts specifically set for these small offencesor even bigger ones, of civil
nature.
 INTERNET SOURCES
1 http://www.nolo.com/legal-encyclopedia/workplace-injury-lawsuit-
sue-30334.html

2 http://www.britannica.com/EBchecked/topic/507759/Roman-law

3 http://chdslsa.gov.in/right_menu/act/pdf/codecivil.pdf

4http://bombayhighcourt.nic.in/data/original/2012/APP21512020512.pdf

5 http://indiankanoon.org/doc/983382/